Environmental Law Commons^™

Legal Tools For Climate Adaptation Advocacy: Securities Law, Nina Hart

Sabin Center for Climate Change Law

Corporations today face increasing risks from climate change. These risks threaten not only the operations and infrastructure of the corporations, but ultimately their long-­‐‑term financial soundness as well. For example, as has been noted with respect to the oil and gas industries, refineries often do not have high profit margins because most of the profits come from extraction. Therefore, refineries, which frequently are near the coasts and vulnerable to increasing sea levels and storms surges, could suffer material financial losses if their operations were disrupted.1 To prevent this physical infrastructure or operational damage, as well as the attendant financial losses, …

Draft Nepa Guidance Requires Agencies To Consider Both Ghg Emissions And The Impacts Of Climate Change On Proposed Actions, Jessica A. Wentz

Sabin Center for Climate Change Law

On December 24, 2014, the Council on Environmental Quality (CEQ) released revised draft guidance on how federal agencies should evaluate greenhouse gas (GHG) emissions and the impacts of climate change when conducting reviews under the National Environmental Policy Act (NEPA). The CEQ’s new guidance does not impose any new legal requirements on federal decision-makers, but it does clarify how federal agencies should consider the effects of GHG emissions and climate change in a manner consistent with their preexisting obligations under NEPA. It is significantly more detailed than the draft guidance released by CEQ in February 2010, and unlike its predecessor, …

Legal Tools For Climate Adaptation Advocacy: Clean Water Act Permitting And Funding Programs, Channing R. Jones

Sabin Center for Climate Change Law

Climate change imperils the quality of water resources and aquatic ecosystems by introducing or exacerbating supply challenges and pollution threats. Existing legal frameworks, including permitting and grant programs, can incorporate climate change adaptation into the way we protect water. In particular, the Clean Water Act – the primary tool used nationwide to protect surface waters from pollutant discharges and fill activity – can be used to promote climate change adaptation in a number of ways.

The Clean Water Act was enacted in 1972 and amended in 1977 and 1987. The statute is principally administered by the U.S. Environmental Protection Agency, …

A Legal Approach To The Improvement Of Energy Efficiency Measures For The Existing Building Stock In The United States Based On European Experience, Teresa Parejo-Navajas

Sabin Center for Climate Change Law

Energy consumption in buildings is on the rise and represents almost half of the total greenhouse gas emissions in cities, which are the main cause of global warming on the planet. There is a great scientific consensus that improving energy efficiency of building systems and operations is a very effective way to tackle this important problem. However, despite the fact that the existing building stock has the greatest potential for greenhouse gas emission reduction, most laws and regulations have focused primarily on new buildings. Hence, improving energy efficiency in existing buildings represents a great opportunity for reducing greenhouse gas emissions …

Save Birds Now Or Birds Later, Michael B. Gerrard

Faculty Scholarship

Due to a combination of climate change, habitat loss, water diversions, pesticides and other toxics, and other factors, the Earth is now facing the sixth mass extinction event in its geological history, on a par with the asteroid that killed the dinosaurs and much else.

The international goal for fighting climate change, as adopted and reaffirmed at several United Nations climate conferences, is to keep global average temperatures from rising more than two degrees Celsius above pre-industrial conditions. Even an increase at that level would have very negative consequences to humans as well as other species — the low-lying island …

The Responsible Investor’S Guide To Climate Change, Jeffrey D. Sachs, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Around the world, institutional investors – including pension funds, insurance companies, philanthropic endowments, and universities – are grappling with the question of whether to divest from oil, gas, and coal companies. The reason, of course, is climate change: unless fossil-fuel consumption is cut sharply – and phased out entirely by around 2070, in favor of zero-carbon energy such as solar power – the world will suffer unacceptable risks from human-induced global warming. How should responsible investors behave in the face of these unprecedented risks?

Memo To The Obama Administration On The U.S. National Action Plan On Responsible Business Conduct, Kaitlin Y. Cordes, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

In January 2015, CCSI sent a memo to President Obama to provide input on the U.S. National Action Plan on responsible business conduct. The memo applauded the U.S. Government’s decision to develop a National Action Plan consistent with the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises, noting that responsible and rights-respecting outward investment can support sustainable development in host countries, and that the U.S. Government has an important role to play in promoting responsible business operations. The memo urged the government to explore in particular how the National Action Plan can address …

Climate Change And International Peace And Security: Possible Roles For The U.N. Security Council In Addressing Climate Change, Dane Warren

Sabin Center for Climate Change Law

This paper considers what actions the United Nations Security Council has taken with regard to climate change thus far, and what actions the Security Council could legally take going forward. To this point, the U.N. Security Council (“UNSC” or “Council”) has played a very minimal role in addressing climate change. The UNSC has held two debates on the relationship between climate change and security, first in 2007 and then in 2011, the latter producing a formal Presidential Statement on the topic.

The U.N. Charter and the literature suggest that the UNSC could theoretically take two possible actions related to climate …

Heat In Us Prisons And Jails: Corrections And The Challenge Of Climate Change, Daniel W.E. Holt

Sabin Center for Climate Change Law

This paper addresses two important but largely neglected questions: How will increased temperatures and heat waves caused by climate change affect prisons, jails, and their staff and inmate populations? And what can correctional departments do to prepare for greater heat and minimize the dangers it poses?

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 …

States Should Think Twice Before Refusing Any Response To Epa's Clean Power Rules, Daniel Selmi

Sabin Center for Climate Change Law

The date is approaching for EPA to finalize its rules for controlling carbon dioxide emissions from existing power plants, and states are contemplating their responses to those rules. A number of commentators have recommended that states “just say no” to EPA and refuse to prepare state plans complying with the rules. Some states are considering bills and a few have enacted laws that would make it difficult for their state environmental agencies to prepare responses that EPA could accept. In turn, EPA has announced it will release a “federal implementation plan” (FIP) for states that fail to submit legally adequate …

Review Of Benjamin K. Sovacool And Michael H. Dworkin's Global Energy Justice: Problems, Principles, And Practices, Michael B. Gerrard

Faculty Scholarship

Energy powers the world. Having enough energy is essential to maintaining even the most minimal quality of life. But extracting and using energy renders some places uninhabitable, and now threatens the ecological integrity of the planet.

Current energy systems involve profound injustices. These injustices can arise in the ways that energy is produced – including through local and global environmental degradation, human rights abuses, corruption, and social and military conflict. Injustice can also arise in the ways that energy is or is not available – with more than a billion people having far too little for a decent existence, while …

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 …

Legal Tools For Climate Adaptation Advocacy: Flood Insurance, Matt Sienkiewicz

Sabin Center for Climate Change Law

This paper explores the impact that climate change will have on flooding and provides details on the operation and functions of the National Flood Insurance Program (NFIP). The paper then discuss the ways the current regime discourages adaptation to climate change, and offers suggestions for how readers can promote climate change adaptation by advocating for changes to the NFIP.

Legal Tools For Climate Adaptation Advocacy: Nepa, Jennier Klein, Ethan Strell

Sabin Center for Climate Change Law

The National Environmental Policy Act (NEPA) was signed into law by President Richard Nixon in 1970. NEPA requires federal agencies to evaluate the environmental effects of a wide range of actions, including direct federal undertakings and projects that receive federal funding or permits. Many states have since enacted similar laws of varying scope, requiring evaluation of the environmental impacts of certain state and local actions. For instance, New York State enacted the State Environmental Quality Review Act (SEQRA) in 1975. Some municipalities, including New York City, have their own environmental review procedures.

The purpose of NEPA and similar state laws …

Climate Change In The Courts: An Assessment Of Non-U.S. Climate Litigation, Meredith Wilensky

Sabin Center for Climate Change Law

In 2007 Arnold & Porter (later joined by the Sabin Center for Climate Change Law at Columbia Law School) compiled and proceeded to update a comprehensive collection of judicial decisions from U.S. courts concerning climate change. Largely drawing on that work, in 2012, Professor David Markell of Florida State University College of Law and Professor J.B. Ruhl of Vanderbilt University Law School published an empirical assessment of climate change litigation in the United States. Since 2011, the Sabin Center has maintained a compilation of climate change cases from outside the United States. Using the categorization methods employed in the Markell …

Reconciling International Investment Law And Climate Change Policy: Potential Liability For Climate Measures Under The Trans-Pacific Partnership, Meredith Wilensky

Sabin Center for Climate Change Law

The pending Trans-Pacific Partnership (TPP) trade agreement has raised controversy, fueled by leaks of the draft text and congressional debate over fast-track negotiation authority. Like similar agreements, the TPP creates the risk of government liability for enacting regulations, especially new or comprehensive measures to address climate change. This Article analyzes how the TPP’s investor protection provisions and dispute settlement mechanism might be invoked to challenge climate change policy. The author concludes that the negotiators’ efforts to date are insufficient to protect climate measures from the risk of liability, and suggests reforms to the draft text.

Sustainable Development And The Brazilian Judge, Gabriel Wedy

Sabin Center for Climate Change Law

This article explores how Brazilian judges have used their authority to promote the environmental, social, economic, and, in particular, governance aspects of sustainable development. Through their decisions, judges have guaranteed Brazilian citizens important rights, which are stated in the progressive Constitution of 1988, drawn up after 20 years of military dictatorship. The citizen’s rights to medical treatment, medicine, surgery, housing and access to education are frequently guaranteed by judicial decisions.

Legal & Scientific Integrity In Advancing A "Land Degradation Neutral World", Shelley Welton, Michela Biasutti, Michael B. Gerrard

Faculty Scholarship

It is no secret that the fight against desertification isn't going well. In the two decades since the United Nations Convention to Combat Desertification ("UNCCD") came into force, desertification – defined as degradation in the quality of "arid, semi-arid, and dry subhumid" land areas – has worsened considerably. Recent United Nations estimates suggest that fifty-two percent of drylands currently under agricultural cultivation are moderately or severely degraded, and 12 million hectares of productive land become barren each year due to desertification and drought. And while drylands are the focus of the UNCCD, the challenge isn't limited to them: somewhere around …

America’S Forgotten Nuclear Waste Dump In The Pacific, Michael B. Gerrard

Faculty Scholarship

During the Cold War the United States detonated sixty-seven nuclear weapons over the atolls of Bikini and Enewetak in the Marshall Islands. In the late 1970s the United States addressed the massive amount of residual contamination by abandoning Bikini as permanently uninhabitable and pushing much of the waste at Enewetak into the open lagoon. Much of the plutonium was dumped into the crater that had been left by an atomic bomb explosion, and then covered with a thin shell of cement. The resultant “Runit dome” sits unmarked and unguarded in a small island and one day will be submerged by …

Outcome Report Of Roundtable On Human Rights Impact Assessments (Hrias) Of Large-Scale Foreign Investments, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI, the Sciences Po Law School Clinic, and the Columbia Law School Human Rights Institute recently published an outcome document of a one-day roundtable focused on the opportunities and challenges presented by human rights impact assessments (HRIAs) of large-scale foreign investments. The roundtable, which was held in April 2014 at Columbia University, provided an opportunity for collaborative reflection on the development of HRIAs, as well as on ways to enhance HRIAs as a framework and tool for both human rights advocacy and human rights risk management in respect of foreign investments.

By sharing the outcomes of the roundtable, this document …

Making Agricultural Investments Work For Land Users & Communities, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Earlier this year, Liberian President Ellen Johnson Sirleaf made an unexpected commitment related to foreign investment in land and community land rights. In a meeting with communities who had raised concerns regarding a British company’s attempts to expand its palm oil production onto their customary land, the President effectively told those communities that they would have the right to say yes or no to further expansion, noting that the company could expand only with the affected communities’ approval.

Meeting Summary Of Colloquium On Policy, Law, Contracts, And Sustainable Development, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI and the Institute for Human Rights and Business co-convened a colloquium on policy, law, contracts, and sustainable development, with a particular focus on large-scale investments in the extractive industries and the agriculture sector. The colloquium provided an opportunity for practitioners to share information on their related work, as well as to reflect on current practices and remaining gaps regarding efforts to embed sustainability and human rights into large-scale deals. This outcome document provides a summary of the discussion, while its annex includes information on participants’ relevant programs, initiatives, and tools.

Outcome Report Of Roundtable On Governing Natural Resources, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In November 2014, CCSI convened a one-day roundtable focused on lessons learned from good governance initiatives for extractive industry investments and large land-based agricultural investments. The roundtable brought together a range of stakeholders working on extractive industry investments and/or land-based forestry and agricultural investments, including representatives from civil society, government, academia, and the private sector. CCSI has published an outcome note from this roundtable.

Key structural differences between the extractive industries and the forestry and agriculture sectors mean that not all lessons learned from good governance initiatives related to extractives investments or land-based agricultural investments are transferrable. However, large-scale extractive …

Toward Win-Win Sustainable Development, Linda Moon

Columbia Center on Sustainable Investment Staff Publications

An interview with Lisa Sachs, Director of the Columbia Center on Sustainable Investment.

Review Mechanisms In Natural Resource Contracts, Jacky Mandelbaum, Salli Anne Swartz, John Hauert

Columbia Center on Sustainable Investment Staff Publications

Periodic review mechanisms, provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract or license and consider whether circumstances have changed since the parties’ initial agreement, are a mechanism that may smooth the process of dealing with inevitable changes in circumstances over the long term of extractive industries contracts. This briefing note looks at the use of such mechanisms, through reviewing existing extractive industry agreements, and considers how the requirements have been expressed to-date and their role as a tool to maintain the relationship between the parties. The Brief examines issues …

Why Good Governance Of Land And Tenure Security Need To Be Part Of The Sustainable Development Goal Framework, Columbia Center On Sustainable Investment, Sustainable Development Solutions Network

Columbia Center on Sustainable Investment Staff Publications

The CCSI and the UN Sustainable Development Solutions Network’s Thematic Group on Good Governance of Extractive and Land Resources published a short briefing note on including land governance in the Sustainable Development Goal framework. The note argues that incorporating good governance of land and tenure security would help meet a number of proposed sustainable development goals for the post-2015 development agenda, including reducing poverty, strengthening food security, empowering women, and alleviating commercial pressures on land. The note recommends the inclusion of an access-to-land indicator to help measure governments’ efforts.

Leveraging Mining Investments In Water Infrastructure For Broad Economic Development: Models, Opportunities And Challenges, Perrine Toledano, Clara Roorda

Columbia Center on Sustainable Investment Staff Publications

The initial phase of the Leveraging Mining-Related Infrastructure Investments for Development project consisted of a worldwide survey of regulatory, commercial and operating case studies of shared use of mining-related infrastructure. This Policy Paper delivers the findings for water infrastructure.

Investment Treaties And Industrial Policy: Select Case Studies On State Liability For Efforts To Encourage, Shape And Regulate Economic Activities In Extractive Industries And Infrastructure, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper, prepared in connection with a February 2014 conference organized by the UN Economic Commission for Africa, discusses some of the implications that investment treaties have for investments in infrastructure and the extractive industries. It focuses on liability for government conduct (1) in connection with tenders and negotiations; (2) when responding to questions regarding the legality of the investment; (3) in using performance requirements to leverage benefits and capture spillovers from the investment; (4) changing the legal framework governing an investment in response to evolving needs, circumstances, and interests; (5) administering the investment; and (6) requesting, and responding to …