Environmental Law Commons^™

Climate Recommendations For A New Democratic President And A New Congress: A Compilation, Clara Grieder, Jordan Gerow

Sabin Center for Climate Change Law

Congress has not enacted a major new environmental law since 1990, when President George H.W. Bush signed the Clean Air Act Amendments and the Oil Pollution Act. He also supported, and the Senate ratified, the United Nations Framework Convention on Climate Change in 1992. The administration of President Bill Clinton supported the Kyoto Protocol, which was designed to achieve the objectives of the Framework Convention, but could not secure Senate ratification. President George W. Bush rejected the Kyoto Protocol and many other actions on climate change. President Barack Obama supported action on climate change; when he was unable to secure …

Legal Levers For Cleaner Air In Kolkata: An Assessment Of Local Legal Authority, Ama Francis

Sabin Center for Climate Change Law

Air pollution in India results in significant adverse health and environmental outcomes. Only 16% of the population lives in an area that meets India’s national air quality standards, and less than 1% lives in an area that meets international guidelines for air quality. In 2015, air pollution resulted in 1.1 million deaths nation-wide. If the World Health Organization’s air quality standard was met, Indian life expectancy would increase by 5.2 years. The state of West Bengal, wherein Kolkata is located, faces some of the highest exposures to air pollution in the country, making local interventions there critical.

In recent years, …

Climate Change, Coming Soon To A Court Near You – Report Two: Climate Litigation In Asia And The Pacific And Beyond, Briony Eales, Ama Francis, Michael Burger, Romany M. Webb, Jessica A. Wentz, Dena Adler, Gregorio Rafael P. Bueta, Francesse Joy J. Cordon-Navarro

Sabin Center for Climate Change Law

Climate change in Asia and the Pacific is deadly and impacts communities now. Regional climate litigation seeks relief in increasingly urgent ways and judges need a tool kit to respond. Report Two of this four-part series is a comprehensive review of the growing number and variety of climate lawsuits in Asia and the Pacific. It underscores the unique flavor and voice of regional jurisprudence and compares it with global approaches. No one can solve climate change alone and neither can any particular judiciary. Judges can, however, learn from each other, taking judicial excellence and applying it to the case before …

The Contact Group On Somali Piracy: An Unlikely Model For Protecting The Environment?, Susan Biniaz

Sabin Center for Climate Change Law

International environmental law covers a wide range of subjects, is extremely detailed, and evolves very rapidly. No wonder it is challenging for practitioners to keep up with developments. An expert in marine pollution regimes may be unaware of the latest initiatives on forest conservation. Given how hyper-specialized the climate world has become, an expert on mitigation may be only mildly aware of recent advances in adaptation. And neither may be in a position to keep up with innovations in international law more broadly.

Deep knowledge has its advantages, but also some drawbacks. When we are faced with the need to …

After Madrid, W[H]Ither The Cop?, Susan Biniaz

Sabin Center for Climate Change Law

With Madrid behind us and Glasgow on the horizon, it is a good time for Parties and others to consider the future of the annual COP. (By “COP,” I mean the climate conference writ large, rather than the “Conference of the Parties,” the narrower technical name for the Parties to the UN Framework Convention on Climate Change.) Madrid, while a remarkably successful venue in terms of logistics, left many not only disappointed at the Parties’ failure to reach agreement and signal an increase in ambition but also confused:

• Why was there such a disconnect between the scientific imperative (as well …

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 …

When Politics Trump Science: The Erosion Of Science-Based Regulation, Romany M. Webb, Lauren Kurtz, Susan Rosenthal

Sabin Center for Climate Change Law

Science is science and facts are facts. My administration will ensure that there will be total [scientific] transparency and accountability without political bias.” That was the promise made in September 2016 by then-candidate Donald Trump when asked how he would protect federal scientists from political interference in their work. Since taking office, however, President Trump has led a concerted effort to undermine federal scientific research, particularly in areas where research findings contradict his own views or undermine the basis of his deregulatory agenda.

That effort is documented in the Silencing Science Tracker, an online database that records anti-science actions taken …

Climate Risk In The Electricity Sector: Legal Obligations To Advance Climate Resilience Planning By Electric Utilities, Romany M. Webb, Michael Panfil, Sarah Ladin

Sabin Center for Climate Change Law

Electricity generation, transmission and distribution, and load are all impacted by weather patterns. Electric system assets have been designed for historic weather conditions, with the goal of ensuring reliability and quick recovery following extreme events. However, climate change is causing major shifts in historic weather patterns and more frequent and severe extremes, which are creating new risk profiles for the electric system. Proactive climate resilience planning by electric utilities to identify, respond, and rationally allocate these climate risks is thus increasingly salient. This paper argues that it is also legally required.

Recently published industry studies demonstrate that accurate, specific, and …

Compilation Of Recommendations To Reduce Greenhouse Gas Emissions In New York State, Kate Marsh, Neely Mckee, Jordan Gerow

Sabin Center for Climate Change Law

The Climate Leadership and Community Protection Act (CLCPA) was passed by both houses of the New York State legislature and signed into law by Governor Andrew Cuomo in June 2019. It took effect on January 1, 2020. It requires total statewide greenhouse gas (GHG) emissions to be 40% below 1990 levels in 2030 and 85% below 1990 levels in 2050, with an aspirational goal of a 100% reduction in 2050. It is one of the strongest climate change laws in the world, and people everywhere are watching its implementation for models of what can be done elsewhere.

The CLCPA establishes …

Environmental Injustice: How Treaties Undermine Human Rights Related To The Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Growing cries for action to effectively address the climate and other environmental crises hold important implications for the governance of cross-border investments. Policymakers and environmental advocates have often overlooked how provisions granted by states in international investment agreements (IIAs) have been used by investors to challenge government measures taken in the public interest to protect the environment and advance environmental justice.

This 2019 paper, published in the Sciences Po Legal Review issue devoted to the climate crisis, explains how the investor-state dispute settlement (ISDS) mechanism, made available to investors in thousands of bilateral and multilateral trade and investment agreements, may …

The Law Of Enhanced Weathering For Carbon Dioxide Removal, Romany M. Webb

Sabin Center for Climate Change Law

Despite scientists’ dire warnings about the catastrophic impacts of climate change, the greenhouse gases that cause it continue to be emitted in substantial amounts. While there is no question that deep, across the board cuts in greenhouse gas emissions are essential, many scientists now agree that simply cutting future emissions will not be enough. It will also be necessary to remove previously-emitted greenhouse gases from the atmosphere. This paper explores one greenhouse gas removal technique – enhanced weathering – which involves spreading finely ground silicate rocks or other materials with similar chemical composition over land or ocean waters. The materials …

Climate Financing Options: An Assessment For Columbia World Project – Ghana Household Energy, Ama Francis

Sabin Center for Climate Change Law

This report was prepared for Columbia World Project: Ghana Household Energy (“the Project”) in order to identify climate finance options that would provide substantial additional funding for Project implementation. The Project will advance in two major stages. Phase 1 will identify policy measures and fuel options that will effectively promote community-level adoption of clean cooking technologies. Phase 2 will then implement the intervention based on findings from Phase 1. The funding this Project seeks will cover Phase 2 operations costs and likely contribute to subsidizing the cost of fuel and hardware in order to reduce the consumer end-price of the …

Legal Tools For Achieving Low Traffic Zones (Ltzs): Lez, Ulez & Congestion Pricing In The U.S. Law Context, Amy E. Turner

Sabin Center for Climate Change Law

Cities around the world are looking to reduce greenhouse gas and other emissions from vehicles through the use of low emission zones and congestion pricing. These strategies have been employed to great success abroad, including in central London, where both congestion pricing and fees and restrictions on higheremitting vehicles are in effect. In the U.S. law context, these policy approaches give rise to significant legal issues that have not been well-explored. This Article proposes that these policy approaches be called “Low Traffic Zones” (LTZs), and surveys those legal considerations. The areas of law explored are: (1) potential for preemption of …

Climate Change, Coming Soon To A Court Near You – Report One: Report Series Purpose And Introduction To Climate Science, Briony Eales

Sabin Center for Climate Change Law

Climate change is the defining challenge of our time. Without urgent climate action, humanity faces a world that cannot sustain civilization as we know it. People around the globe are demanding action, some with climate litigation. This four-part report series recognizes the inevitability of increased litigation in the era of climate change and judges need a tool kit to respond. Report One explains how judges from Asia and the Pacific contribute to climate governance, along with the Asian Development Bank’s rationale for producing this report series. It guides readers through some of the basics about climate change: What is causing …

How Agency Science Is Under Threat, Romany M. Webb

Sabin Center for Climate Change Law

The Environmental Protection Agency has a tradition of scientific excellence. EPA has led groundbreaking research on acid rain, lead, chemical safety, and many other public health and environmental issues.

However, in the last four budget cycles, the Trump administration has proposed slashing funding for EPA research programs. When Congress has refused, administration officials have sought to prevent, hide, and discredit research in other ways. They have been remarkably successful despite the existence of agency policies designed to protect researchers against political interference.

Climate Change, Coming Soon To A Court Near You – Report Three: National Climate Change Legal Frameworks In Asia And The Pacific, Dena Adler, Hillary Aidun, Michael Burger, Ama Francis, Briony Eales, Maria Cecilia T. Sicango

Sabin Center for Climate Change Law

National legal and policy frameworks underpin international climate action because they are the backbone of domestic responses to the climate emergency. Unless they support global objectives, local climate action stalls. Concerned by sluggish national responses to climate change or injured by its impacts, citizens are filing lawsuits, making courts central to national climate governance. To adjudicate these lawsuits, courts require current information about their climate change legal and policy frameworks. This report provides holistic syntheses of the climate legal and policy frameworks of 32 countries in Asia and the Pacific and discusses key legislative trends and climate-relevant constitutional rights.

The Law And Science Of Climate Change Attribution, Michael Burger, Jessica A. Wentz, Radley Horton

Sabin Center for Climate Change Law

There is overwhelming scientific agreement that human activities are changing the global climate system and these changes are already affecting human and natural systems. The observational record shows that the planet is getting significantly warmer, with eighteen of the nineteen warmest years on record occurring since 2001. Other observed changes include rising sea levels, ocean warming and acidification, melting sea ice, thawing permafrost, increases in the frequency and severity of extreme events, and a variety of impacts on people, communities, and ecosystems. There are multiple lines of evidence linking these changes to anthropogenic influence on climate.

How To Fix The Climate, David G. Victor, Charles F. Sabel

Faculty Scholarship

Can the world meet the challenge of climate change? After more than three decades of global negotiations, the prognosis looks bleak. The most ambitious diplomatic efforts have focused on a series of virtually global agreements such as the Kyoto Protocol of 1997 and the Paris Agreement of 2015. With so many diverse interests across so many countries, it has been hard to get global agreement simply on the need for action; meaningful consensus has been even more elusive. Profound uncertainty about the effectiveness of various mitigation measures has made it difficult to estimate the cost of deep cuts in emissions.

An Environmental Lawyer's Fraught Quest For Legal Tools To Hold Back The Seas, Michael B. Gerrard

Faculty Scholarship

The law is the principal mechanism by which society resolves disputes and implements policies. For more than forty years, I have worked to use the law to address environmental problems, initially by trying to stop projects that would increase pollution and harm communities. But there are limits to what the courts can do without explicit direction from legislatures. Climate change is a prime example. Some have seen litigation as a silver bullet, but at least so far that has not been the case. Elections matter more than lawsuits. Until and unless elections bring to power a president, a Congress, and …

Direct Air Capture: An Emerging Necessity To Fight Climate Change, Michael B. Gerrard

Faculty Scholarship

The Paris Agreement of 2015 declared that we must keep global average temperatures well below 2.0°C (3.6°F) above preindustrial levels, and as close to 1.5°C as possible. However, a 2018 report from the Intergovernmental Panel on Climate Change (IPCC) showed that even 2.0°C would be catastrophic; 1.5°C should be the firm goal. We are now around 1.0°C and are already seeing wildfires, hurricanes, inland precipitation, and other events of unprecedented magnitude.

Biden Administration Will Reverse Many Trump Environmental Policies, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

When Joseph R. Biden, Jr. is inaugurated as the 46^th President of the United States on January 20, he will reverse many of the environmental actions taken by President Donald Trump. Some of this he can and probably will do immediately, possibly on Inauguration Day; other actions will have to go through administrative processes that will take several months, at least. The Trump Administration neither secured nor repealed almost any environmental legislation even while Republicans controlled both the House and the Senate, and little it did in this area is irrevocable.

The Perils Of Relying On Fema Flood Maps In Real Estate Transactions, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

A standard part of due diligence before real estate transactions is ascertaining whether the property is prone to flooding. The usual method has long been to rely on the 100-yearold flood maps of the Federal Emergency Management Agency (FEMA).

Such reliance is highly misleading. FEMA flood maps can be seriously out of date. They also reflect only historic conditions, not future flooding as a result of sea level rise and extreme precipitation. Moreover, large parts of the United States are not mapped at all.

New York Environmental Legislation In 2019, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

In 2019, with the Democrats newly in full control of the State Senate, the Assembly and the Governor’s office, New York adopted more environmental legislation than it had in more than a decade. This included a sweeping climate change statute, a new environmental justice article in the Environmental Conservation Law, and a statewide ban on plastic carryout bags. This annual survey reports on these developments and numerous other laws targeting environmental concerns.

Emergency Exemptions From Environmental Laws, Michael B. Gerrard

Faculty Scholarship

The national response to the coronavirus crisis may face several impediments but federal and state environmental laws should not be among them. Most of these laws have emergency exemptions that allow the usual (and sometimes lengthy) procedures to be bypassed, and some substantive requirements to be waived, in instances of true urgency. However, there is concern that some agencies and corporations will use this as an excuse to bypass environmental laws that aren’t actually getting in the way of responses to the crisis.

For Coöperation And The Abolition Of Capital, Or, How To Get Beyond Our Extractive Punitive Society And Achieve A Just Society, Bernard E. Harcourt

Faculty Scholarship

In hindsight, the term "capitalism" was always a misnomer, coined paradoxically by its critics in the nineteenth century. The term misleadingly suggests that the existence of capital produces a unique economic system or that capital itself is governed by economic laws. But that's an illusion. In truth, we do not live today in a system in which capital dictates our economic circumstances. Instead, we live under the tyranny of what I would call "tournament dirigisme": a type of state-directed gladiator sport where our political leaders bestow spoils on the wealthy, privileged elite.

We need to displace this tournament dirigisme with …

Global Investor-Director Survey On Climate Risk Management, Kristin Bresnahan, Jens Frankenreiter, Sophie L'Helias, Brea Hinricks, Nina Hodzic, Julian Nyarko, Sneha Pandya, Eric L. Talley

Faculty Scholarship

Changes in the global climate are having profound impacts on business operations, governance, and organizational management around the world. Boards of directors are searching for ways to account for these changes as they help guide their organizations, and investors are increasingly concerned about how these changes might impact their portfolios. This global survey, conducted by a team of researchers at the Ira M. Millstein Center for Global Markets and Corporate Ownership at Columbia Law School and experts at LeaderXXchange, seeks to understand how – if at all – institutional investors and board directors incorporate climate-related issues in their investment decision …

Federal Legislative And Administrative Framework, John C. Dernbach, Michael B. Gerrard

Faculty Scholarship

Achieving net-zero carbon emissions by 2050 will necessitate significant changes to most of America’s physical assets, from its power generation and transmission infrastructure to its buildings, vehicles, factories, forests and farms. These broad changes will need to address all four pillars of deep decarbonization – electricity decarbonization, energy efficiency and conservation, electrification of transportation and buildings, and carbon capture – supplemented by significant reductions in emissions of non-CO₂ pollutants. Such comprehensive change will necessitate the coordinated action of most of the departments of the Federal Government, from the Environmental Protection Agency (EPA) and Department of Energy (DOE) to Department of …

The Role Of Lawyers In Decarbonizing Society, Michael B. Gerrard

Faculty Scholarship

This Essay concerns one current project to turn GHG reduction goals into actual laws that could achieve these goals. The project has four phases: (1) formulating the engineers’ recommendations; (2) identifying the existing laws that would help implement those recommendations, and the new laws that need to be written; (3) drafting the laws; and (4) attempting to persuade lawmakers at the federal, state, and local levels to adopt them. This Essay discusses each phase in turn. As will be shown, we are well into the third phase and starting the fourth, and are in need of volunteer lawyers to help …

New York’S New Statute On Siting Renewable Energy Facilities, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

As part of a massive budget bill signed into law by Gov. Andrew Cuomo on April 3, New York has adopted the Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA). It completely revamps the process under which large-scale renewable energy facilities and associated transmission lines receive state and local approvals.

Summary: Combating Climate Change With Section 115 Of The Clean Air Act, Jonathan Cannon, Ann E. Carlson, Greg Dotson, Michael B. Gerrard, Justin Gundlach, Jayni Foley Hein, Cale Jaffe, Michael A. Livermore, Jason A. Schwartz, Daniel Selmi, Jessica A. Wentz, Philip S. Barnett, Keith J. Benes, Alexandra E. Teitz

Faculty Scholarship

The scale and scope of the climate crisis calls for comprehensive nationwide efforts to reduce greenhouse gas emissions. New legislation, passed by Congress and signed by the President, is the first and best option for climate action at the federal level. This could be a version of the Green New Deal, a carbon tax, sectoral limits, an emissions cap with compliance trading, or another approach. What matters most is that the legislation effectively cut the greenhouse gas emissions driving the world’s temperatures ever higher. Unfortunately, the prospect for federal legislation is uncertain, while strong and decisive action is needed now. …