Law Commons^™

10 Questions To Ask About The Proposed “Global Pact For The Environment”, Susan Biniaz

Sabin Center for Climate Change Law

There is no doubt that more needs to be done, both nationally and internationally, to protect the environment. It is tempting, particularly during the Trump era, to welcome any concerted effort to do so. The issue is whether the proposed “Global Pact” is the right vehicle for enhancing environmental protection.

The Global Pact was launched this past June in Paris, with support from, among others, President Macron of France and former California Governor Arnold Schwarzenegger. At least in its preliminary state, the Pact reflects broad, cross-cutting principles in legally binding form. France intends to seek support at the upcoming UN …

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 …

Critics Float Legal Theories To Challenge Pruitt's Science Advisor Policy, Maria Hegstad

Sabin Center for Climate Change Law

House Democrats and a Columbia University law professor are detailing possible legal arguments that could be used to challenge Administrator Scott Pruitt’s controversial new directive barring scientists who are receiving an EPA research grant from serving on one of its scientific advisory committees.

Transparency And Icao's Aviation Offsetting Scheme: Two Separate Concepts?, Aoife O'Leary

Sabin Center for Climate Change Law

The International Civil Aviation Organisation (ICAO), the UN specialised body for aviation, is developing a scheme to reduce the climate impact of aviation emissions, the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). From 2021, participating countries will (voluntarily at first) offset any growth in CO2 aviation emissions above the level those emissions have reached in 2020. This paper does not consider the climate implications of the scheme but rather focuses on whether the governance structure under which the scheme is being developed – especially its transparency and opportunities for public participation – meets an appropriate standard, given the …

Act Locally, Reflect Globally: A Checklist Of Options For U.S. Cities And States To Engage Internationally In Climate Action, Susan Biniaz

Sabin Center for Climate Change Law

U.S. cities and states are increasingly asking how they can play a more visible and active role in international climate change efforts.

Cities and states have obvious incentives to take action to mitigate and adapt to climate change. But why engage internationally? They may seek to demonstrate leadership or gain appropriate recognition for “doing their part.” They may want to inspire others to follow suit or support them in doing so, such as through exchanging best practices. They may seek to join the global march toward low-emission and resilient societies. Or they may want to show the world that U.S. …

Appliance And Equipment Efficiency Standards: A Roadmap For State And Local Action, Peter Ross

Sabin Center for Climate Change Law

For decades, federal energy and water efficiency standards have demonstrably saved consumers money, reduced pollution, and increased grid reliability. The U.S. Department of Energy (“DOE”) periodically reviews standards and test procedures for more than 60 products, representing about 90% of home energy use, 60% of commercial building energy use, and 30% of industrial energy use. Due in part to their incremental nature and proven track record of success, these standards have been relatively uncontroversial, and often have been reached via consensus between manufacturers seeking regulatory certainty and environmental advocates seeking greater efficiency.

Recently, however, the political winds have shifted. Immediately …

The Status Of Climate Change Litigation: A Global Review, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Over the last decade, laws codifying national and international responses to climate change have grown in number, specificity, and importance. As these laws have recognized new rights and created new duties, litigation seeking to challenge either their facial validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and regulatory inaction has also continued. As a result, courts are adjudicating a growing number of disputes over actions – or inaction …

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 …

The Energy Improvement Of The Urban Existing Building Stock: A Proposal For Action Arising From Best Practice Examples, Teresa Parejo-Navajas

Sabin Center for Climate Change Law

Improving energy efficiency in existing buildings presents an opportunity for reducing greenhouse gas emissions. Numerous measures meant to increase efficiency and decrease emissions have been implemented in cities across Europe and the United States. Standing out from the rest is New York City, a remarkable example of commitment to the fight against climate change. The city has urged its authorities to take important measures in order to eliminate (or at least diminish) the adverse effects resulting from its special characteristics, great urban density, and large percentage of greenhouse gas emissions coming from an aged building stock. Yet there is always …

The Application Of Open Records Laws To Publicly Funded Science, Lauren Kurtz

Sabin Center for Climate Change Law

The federal Freedom of Information Act (FOIA) and the state law equivalents promote government transparency by allowing citizens to request copies of administrative records. Any citizen can file a request with a government entity for copies of government documents, and the government must either produce the information or explain why it is exempt from production (for example, for national security purposes).

While these laws were originally written with an eye toward policy makers and bureaucrats, in recent years, these open records laws have been used increasingly to request information from publicly funded scientists. Scientists employed by federal agencies, state agencies, …

How Did Federal Environmental Impact Statements Address Climate Change In 2016?, Saloni Jain, Omri Klagsbald, Giovanna Leigh Crozier-Fitzgerald, Taylor Quinn, Elana Sulakshana

Sabin Center for Climate Change Law

In partnership with the Sabin Center for Climate Change Law, this project surveyed 31 federal environmental impact statements (EISs) published from September through November 2016. The objective was to evaluate how federal agencies were implementing the guidance released in August 2016 by the Council on Environmental Quality (CEQ) on how to account for climate change and greenhouse gas (GHG) emissions in the environmental review process.

Increasing Gasoline Octane Levels To Reduce Vehicle Emissions: A Review Of Federal And State Authority, Romany M. Webb

Sabin Center for Climate Change Law

This paper explores the potential for federal and/or state regulation of gasoline octane levels. At the federal level EPA is authorized to regulate the components and/or characteristics of gasoline under section 211 of the Clean Air Act. Pursuant to that section, EPA may regulate octane if evidence before it demonstrates that switching to high octane gasoline is necessary to achieve vehicle carbon dioxide emissions standards (i.e., adopted under section 202 of the Clean Air Act) or would significantly reduce the costs of achieving those standards. If EPA promulgates regulations, or publishes a finding that regulation is unnecessary, state regulatory action …

I Beg To Differ: Taking Account Of National Circumstances Under The Paris Agreement, The Icao Market-Based Measure, And The Montreal Protocol’S Hfc Amendment, Susan Biniaz

Sabin Center for Climate Change Law

This paper explores the different ways in which negotiators to three recent environmental instruments accounted for different national circumstances in formulating commitments and other aspects of cooperation in the instruments. The author finds that the negotiators of these instruments have significantly expanded the arsenal of differentiation tools based on considerations pertaining to logic, fairness, limited capacity, and negotiating leverage.

Federal Implementation Plans And The Path To Clean Power, Daniel Selmi

Sabin Center for Climate Change Law

Promulgated under the Clean Air Act in October 2015, the Clean Power Plan (“CPP”) requires states to significantly reduce carbon emissions from existing power plants and is the centerpiece of the Environmental Protection Agency’s (“EPA”) response to global warming. Many states have filed lawsuits challenging the CPP and some states have vowed that, if those suits are unsuccessful, they will refuse to implement it. In turn, EPA has proposed rules that would implement the CPP by imposing a “federal implementation plan” (“FIP”) upon those recalcitrant states under the authority of the Clean Air Act. Thus, the success of the CPP …

La Victoria De Urgenda: El Inicio De La Lucha Judicial Frente Al Cambio Climatico, Teresa Parejo Navajas

Sabin Center for Climate Change Law

La Sentencia del Tribunal del Distrito de La Haya de junio de 2015, por medio de la cual se obliga al gobierno de los Países Bajos a adoptar una política de mitigación más ambiciosa, ha supuesto una noticia inesperada y valiente que, sin perjuicio de su – en algunas ocasiones – débil argumentación, supone un importantísimo avance en la lucha contra el cambio climático.

Abstract in English
The ruling of The Hague District Court of June 2015 forces the Dutch government to implement a more ambitious mitigation policy in order to comply with its duty of care. This unexpected and …

Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz

Sabin Center for Climate Change Law

International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries.

Lesser known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have “resolved” an issue by sidestepping it …

Environmental Law: Time To Reboot, James Gustave Speth

Sabin Center for Climate Change Law

Presentation given by James Gustave Speth at the 2016 David Sive Memorial Lecture.

Research Governance, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Forthcoming in Climate Engineering and the Law: Regulation and Liability for Solar Radiation Management and Carbon Dioxide Removal (Michael B. Gerrard & Tracy Hester, eds.), this chapter approaches the complex topic of climate engineering research governance in four Parts.

Part I describes the forms research has taken so far and those that are expected in the future. It also offers short summaries of five instances of climate engineering field research conducted since 2009. Part II considers the key issues and concerns that have prompted calls for governance and that have inspired sometimes heated debate of what it should involve. Part …

Integrating Climate Change Resilience Into Hud’S Disaster Recovery Program, Justin Gundlach, Channing R. Jones

Sabin Center for Climate Change Law

The Department of Housing and Urban Development (HUD)’s community development block grant disaster recovery program (CDBG-DR) can better and more clearly incorporate climate resilience and adaptation priorities. This article identifies and analyzes the statutes that have guided HUD's approach to disaster recovery to date, as well as forms of “soft guidance” issued by HUD for use by various stakeholders, including both HUD CDBG-DR program officers and the state and local officials that interact with them. Comparing these materials reveals a tension between the requirement that all projects funded by CDBG-DR “tie back” to the most recent disaster, and the logic …

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

Sabin Center for Climate Change Law

This paper considers how a multi-disciplinary research community can build upon these efforts to further enhance online access to EIA documents and make it easier for the public to use the information contained in those documents. Part I lays the groundwork for this inquiry: it describes the types of information contained in EIA documents and the extent to which existing online databases provide an effective means of locating and searching through these documents. Part II discusses the potential applications of the information contained in these documents, and how this might inform priorities related to online database development. Part III contemplates …

Considering The Effects Of Climate Change On Natural Resources In Environmental Review And Planning Documents: Guidelines For Agencies And Practitioners, Jessica A. Wentz

Sabin Center for Climate Change Law

This paper describes how climate change will affect natural resources in the United States, and explains why consideration of how climate change will affect those resources is necessary in order to fulfill legal requirements under NEPA and other statutes governing the management of these resources. It also presents examples of how climate change has been meaningfully accounted for in environmental review and planning documents. The accompanying protocol contains guidelines for considering the impacts of climate change in environmental reviews as well as other planning documents (e.g., resource management plans and resource assessments).

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 …

Local Law Provisions For Climate Change Adaptation, Justin Gundlach, P. Dane Warren

Sabin Center for Climate Change Law

In September 2014, New York enacted the Community Risk and Resiliency Act (CRRA), which requires in part that the New York Department of State (DOS) and the Department of Environmental Conservation (DEC) create model local laws relating to climate change adaptation for use by local governments. In an effort to assist the State with drafting model local laws for adaptation; to encourage the State to incorporate a broad range of adaptation strategies, including retreat from areas of high flood risk; and to assist local governments with implementation of these programs. The Sabin Center for Climate Change Law has assembled existing …

Climate Change And Sustainable Development In Brazilian Law, Gabriel Wedy

Sabin Center for Climate Change Law

This article aims to explain briefly how the National Policy for Climate Change (NPCC) in Brazil - established by Act 12.107/2009 – is structured. This Act will be critically analyzed according to what is being currently discussed on Climate Change Law, both globally and within the United States.

It will also seek to demonstrate the importance of the constitutional principle of sustainable development provided for in the Brazilian Federal Constitution in order to correct omissions and imperfections of the National Policy for Climate Change, whenever it is subject to interpretation and implementation by the Judiciary branch, the Executive branch and …

Legal Tools For Climate Adaptation Advocacy: The Electric Grid And Its Regulators – Ferc And State Public Utility Commissions, Payal Nanavati, Justin Gundlach

Sabin Center for Climate Change Law

The electric grid connects electricity generators to consumers. State and federal regulators are tasked with ensuring that consumers have access to safe and reliable electricity at just and reasonable rates. The requirements of this task have and will continue to transform as technologies change and as the impacts of climate change alter the context in which the electric grid operates. Thus, regulators who make adapting to climate change a priority will better fulfill their mandate to ensure that utilities provide consumers with safe and reliable electricity at just and reasonable rates. Yet some regulators do not recognize how closely adaptation …

Sea-Level Rise And Changing Times For Florida Local Governments, David Markell

Sabin Center for Climate Change Law

The legal environment for local government in Florida is beginning to change when it comes to sea-level rise (sometimes referred to as SLR). Innovations in institutional structure and governance strategies are underway in the State as well. This paper reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others. It begins with the State’s decision, in 2011 legislation, to give local governments a new, optional tool – referred to as “Adaptation Action Areas” (AAAs) – to address sea-level rise and related issues in local comprehensive plans. The …

How Much Does The Existing Regulatory Patchwork Reduce Greenhouse Gas Emissions?, Justin Gundlach

Sabin Center for Climate Change Law

This paper offers an answer to the question, “What levels of greenhouse gas (“GHG”) emissions reduction do the constituent programs in the U.S.’s existing regulatory patchwork achieve?” Its answer represents an attempt to measure the same effect from eight regulatory interventions: EPA’s Prevention of Significant Deterioration program, as it is expected to operate following the Supreme Court’s UARG v. EPA decision in 2014; EPA’s Clean Power Plan; EPA’s renewable fuel standard; the federal Corporate Average Fuel Economy standards for light, medium, and heavy duty vehicles; the renewable electricity generation Production Tax Credit and Investment Tax Credit; the Regional Greenhouse Gas …

Potential Liability Of Governments For Failure To Prepare For Climate Change, Jennier Klein

Sabin Center for Climate Change Law

This paper examines whether governments can expose themselves to potential legal liability by turning a blind eye to the accumulating risks of climate change. Specifically, the paper addresses potential claims sounding in negligence, fraud, and takings, describing the benefits and challenges of each theory. The paper explores ways to overcome a government’s claim of sovereign immunity in the context of a negligence claim, noting in particular the common government waiver of immunity for claims arising out of dangerous conditions of government owned property. The paper describes the challenges of bringing a claim for fraud where officials intentionally obscure relevant information …

An Analysis Of Senator Mcconnell's Letter Urging States Not To Comply With Epa's Clean Power Plan, Daniel Selmi

Sabin Center for Climate Change Law

On numerous occasions Senator Mitchell McConnell, the Senate Majority Leader, has attacked the upcoming Clean Power Plan regulations that the Environmental Protection Agency (EPA) is scheduled to issue in June of this year. Most notably, on March 19, 2015, he sent a letter to the National Governors Association urging the governors of all fifty states not to prepare state plans in response to those regulations. In that letter he laid out what he termed his “serious legal and policy concerns” regarding the EPA proposal. The letter received wide publicity.

Daniel Selmi has written an essay analyzing legal statements made by …