Environmental Law Commons^™

Red China Going Green: The Emergence And Current Development Of Carbon Emissions Trading In The World's Largest Carbon Emitter, Xiaotang Wang

Sabin Center for Climate Change Law

This paper focuses on one of China’s efforts to engage with climate change—the establishment and development of carbon emissions trading schemes (ETSs) in the country. Section II examines the shift from command and control approaches to market mechanisms in China’s climate policy over the past two decades, which primed the domestic scene for the emergence of carbon emissions trading. Section III studies the seven regional ETS pilots due to launch later this year, the success or failure of which will to a large extent determine the future of carbon markets in not only China, but most likely the rest of …

Digest Of Hydraulic Fracturing Cases, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Fracking And Federalism Choice, Michael Burger

Sabin Center for Climate Change Law

In response to David B. Spence's "Federalism, Regulatory Lags, and the Political Economy of Energy Production," I offer a set of constructive challenges to his article. In Part I, I argue that fracking’s federalism-choice question has already been answered, and that but for the outdated and underjustified exemptions mentioned above, fracking is already under the jurisdiction of federal regulators. In Part II, I conduct an alternative federalism-choice analysis that adds to Professor Spence’s analysis in three ways. First, I balance his analysis by examining rationales commonly used to justify decentralization, rather than federalization, of environmental law. Second, I argue that …

Carbon Capture And Storage Policy In China, Yan Gu

Sabin Center for Climate Change Law

This paper examines the current state of Carbon Capture, Utilization and Storage technology (CCUS) in China as well as the related climate change policy, laws, and initiatives that might be used to encourage the large-scale deployment of carbon sequestration in China. The paper is organized in six sections. Section I examines the overall status of CCUS development in China, including CCUS research activities and demonstration project deployment. Section II discusses the broader environment of national climate change policies issued by the State Council (namely the Central People’s Government) and how it accommodates CCUS development policy. Section III reviews China’s technology …

Environmental Law/Environmental Literature, Michael Burger

Sabin Center for Climate Change Law

What, is truly "environmental" about environmental law? This Article is the first attempt to answer this question by integrating Law & Literature scholarship with the study of environmental law. I argue that competing narratives of nature and culture common to the American environmental imagination play a more significant role in environmental law and litigation than previously acknowledged. These competing narratives, communicated through a known set of environmental stories and tropes, are used by attorneys to establish, frame, narrate and argue their cases, and they are absorbed, reimagined, reframed and retold by judges in their written opinions, making environmental law a …

Discussion Of Climate Change-Related Water Impacts In Federal Environmental Impact Statements (Eiss), January-September 2012, Cathy Li

Sabin Center for Climate Change Law

Climate change and its predicted effect on precipitation, temperature, storm frequency and intensity, global sea levels, and numerous other factors will pose significant challenges for the maintenance and operations of built infrastructure. Climate change is predicted to exacerbate water-related issues, such as water supply shortages brought on by increasingly severe droughts and more frequent or intense flooding caused by extreme precipitation events. Executive Order 13514 and subsequent instructions from the Council on Environmental Quality (CEQ) have directed federal agencies to prepare for and adapt to the changing environment in which they will have to operate. The National Environmental Policy Act …

The (Re)Federalization Of Fracking Regulation, Michael Burger

Sabin Center for Climate Change Law

The purpose of this Article is to defend environmental law's federalism choices from the insinuation that they do not match fracking's environmental impacts and to demonstrate that fracking does indeed belong under the umbrella of federal law. The Article proceeds in four Parts. Part I establishes the federalism-choice analysis framework and applies it to both state and federal regulation of fracking. Part II buttresses the conclusion that federal regulation of potential impacts on underground drinking-water supplies is appropriate through a fresh and extensive examination of the statutory scheme and legislative history of SDWA. Part III offers further support for federal …

Regulating Electricity Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster

Faculty Scholarship

This white paper evaluates the legal workability and constitutionality of what is frequently considered the most feasible mechanism for RGGI to use in regulating imports: an obligation on RGGI “load serving entities” (LSEs) – those companies responsible for supplying electricity to end-use customers – to purchase allowances to account for the emissions associated with the electricity they sell that is imported. Ultimately, although there are many design complexities yet to be worked out, we find that an LSE-centered approach could present a viable pathway forward for RGGI states’ regulation of imports. It is likely to create long-term price signals about …

Shared-Use Infrastructure: A Prickly Partnership Takes Root, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Only about 30% of Africa has access to electricity, and transport costs in Africa are among the highest in the world. For the World Bank, the annual funding gap for infrastructure investment in Africa is US $31 billion.

This gap however can be filled if the investments of natural resource concessionaires are leveraged and not planned in an enclave model. In resource-rich but infrastructure-poor Africa, natural resource concessionaires have traditionally developed railways, ports and power plants to serve their own needs. Africa has therefore often missed the opportunity of coordinating those large investments with national infrastructure planning and has failed …

Ask The Experts: Mining, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

How can governments best ensure mining produces broad-based economic development?

At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.At the Vale Columbia Center on Sustainable International Investment at Columbia University, we have identified five “pillars” that are necessary for resource-based sustainable development. Each pillar requires the collaboration of governments, companies, donors and communities.

"Green" Product Procurement Policy In The European Union: Treatment Of Lifecycle Carbon Analysis And Environmental Ppm Restrictions, Shawna Ganley

Sabin Center for Climate Change Law

With approximately 19% of the EU’s GDP going to government purchases, “green procurement” policies could potentially have a sizable impact on carbon emissions, and moreover could bolster the larger consumer market for sustainable goods. This white paper reviews current EC policy in this area, focusing particularly on the way in which the EC treats lifecycle analysis and non-product related “process and production methods” (PPMs), criteria that relate to the way in which the product was produced rather than to the physical properties of the final product. The paper also addresses some of the factors that may have stymied better uptake …

Will Greenhouse Gas Rules Prohibit New Coal Power Plants?, Christine Fazio, Ethan Strell

Sabin Center for Climate Change Law

Our article on June 28, 2012, discussed a proposed rule by the U.S. Environmental Protection Agency (EPA) that would limit, for the first time, carbon dioxide (CO2) emissions from new fossil fuel-fired power plants. The proposal’s standard was based on the emissions of new natural gas-fired combined-cycle power plants. In order to meet the standards, new coal-fired plants would need to employ costly and untested carbon capture and storage (CCS) technology. The proposal was criticized by supporters of the coal industry because the standard would essentially prevent any new coal-fired power plants from receiving Clean Air Act (CAA) construction permits. …

Recovering From The Recovery Narrative: On Glocalism, Green Jobs And Cyborg Civilization, Michael Burger

Sabin Center for Climate Change Law

In this Essay, I make a preliminary foray into new narrative terrain, identifying several emerging legal storylines that have arisen in the wake of climate change disruptions and that I predict will prove influential in the coming years. In Part I, I discuss the ways in which new perceptions of scale are re-defining human beings' attachments to a sense of "place" or "dwelling" and are shaping new attitudes about what constitutes the local, posing potential problems for existing federalism schemes. In Part II, I discuss the ways in which America's long history of nationalizing nature manifests in the discourse surrounding …

Envisioning Resilient Electrical Infrastructure: A Policy Framework For Incorporating Future Climate Change Into Electricity Sector Planning, Sam C.A. Nierop

Sabin Center for Climate Change Law

Climate change needs to be incorporated in future designs of the electricity sector. This paper argues for a policy framework in which utilities take the lead by performing an electrical climate change impact assessment that evaluates to what extent utilities’ electrical assets are vulnerable to future climate change. Based on this assessment, electrical climate change adaptation plans should be formulated by the utility in cooperation with utility regulators, municipalities and supralocal governments. A collaborative process is essential, because adaptation measures need to be tailored to the regional circumstances and many types of adaptation measures require governmental approval. In order for …

Technology Transfer And Dissemination Under The Unfccc: Achievements And New Perspectives, Stéphanie Chuffart

Sabin Center for Climate Change Law

Response to climate change will critically depend on the cost, performance, and availability of technologies that can lower emissions, mitigate, and adapt to climate change. Technological innovation can furthermore lower the cost of achieving environmental objectives. However, data from the United Nations Framework Convention on Climate Change (UNFCCC) Subsidiary Body for Scientific and Technological Advice flag that although issues of technology transfer have been central to the UNFCCC since the negotiation of the Convention, there is still an urgent need for effective environmental technology diffusion. Building upon lessons learned from technology transfer activities under the Clean Development Mechanism and the …

Legal Issues In Integrated, Multi-Pollutant Planning For Energy And Air Quality, Shawna Ganley, Shelley Welton

Sabin Center for Climate Change Law

In the face of persistent air quality problems, as well as emerging concerns such as greenhouse gases and state budgetary constraints, states are looking to new ways to maximize air quality while minimizing costs. The non-profit Regulatory Assistance Project (RAP) assists states in air quality management, and has recently proposed a new methodology for states to use in order to take a proactive, forward-thinking approach to optimize air quality. RAP’s proposed Integrated, Multi-Pollutant Planning for Energy and Air Quality (IMPEAQ) fosters long-range planning, multi-pollutant analysis and cost optimization modeling to enable state air quality districts to achieve efficient gains in …

Managed Coastal Retreat: A Legal Handbook On Shifting Development Away From Vulnerable Areas, Anne Siders

Sabin Center for Climate Change Law

Numerous legal tools already exist to assist federal, state, and local governments in conducting managed retreat away from the most vulnerable coasts. Scattered publications, toolkits, and websites describe a broad range of legal, policy, and regulatory tools. These tools have, with little fanfare, been used by communities around the United States to implement managed retreat. This Handbook collects examples, case studies, and lessons learned from some of these early innovators in the hope that their lessons can inform future efforts to limit the exposure of our communities to coastal threats. The key legal issues raised by these examples are also …

What Does Environmental Justice Mean In An Era Of Global Climate Change?, Michael B. Gerrard

Faculty Scholarship

The 1990s saw the emergence of the issue of environmental justice – the disproportionate exposure of low-income and minority communities to environmental hazards - into the U.S. political sphere. The 2000s saw the emergence of global climate change as a political concern. Neither has led to significant legislation at the federal level, and thus old laws designed for different purposes are being utilized with decidedly mixed results.

This article addresses the confluence of environmental justice and global climate change. The two interact in complex ways, as do the approaches to dealing with them both.

The magnitude of the climate challenge …

The Opportunities For And Hurdles To Combined Heat And Power In New York City, Alexis Saba, Bianca Howard, Michael Gerrard, Vijay Modi

Faculty Scholarship

This paper first seeks to quantify the potential for CHP development in New York City and describe the primary hurdles to optimal deployment in Parts I and II. Part III provides policy solutions for overcoming these hurdles and recommendations for how stakeholders can use information and analysis to maximize the opportunities for CHP.

Some Pluralism About Pluralism: A Comment On Hanoch Dagan's "Pluralism And Perfectionism In Private Law", Jedediah S. Purdy

Faculty Scholarship

Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on where we stand on the property landscape at any time, we may be community-minded sharers, devoted romantics in marriage, or coolly rational market actors, and the local property law will smooth each of these paths for us. Property law is built on the design of …

Four Questions About Fracking, Thomas W. Merrill

Faculty Scholarship

It is difficult to think of a more timely or important topic than horizontal hydraulic fracturing and its impact on the environment. It is especially useful to have an exchange of views on this subject now, before the statutes, regulations, and court decisions start to roll in. Law professors – I cannot speak for anyone else – have a strong proclivity for backward-looking analysis, dissecting what should have been done after the basic direction of the law is set and the courts have spoken. It is much more useful to weigh the pros and cons of different approaches at an …

Multilateral Environmental Agreements In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in in WTO dispute settlement. Its distinguishing feature is that it seeks to address this relationship in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators’ silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO Members, but could be used as sources of factual information.

Climate Change Action Without Congress, Michael B. Gerrard

Faculty Scholarship

Congress has not enacted major environmental legislation since 1990, and no end to the paralysis is in sight. Nonetheless, there is a great deal that the Obama Administration can do with its existing statutory powers to fight climate change.

Expedited Approval Of Energy Projects: Toward Assessing The Forms Of Procedural Relief, Michael B. Gerrard

Faculty Scholarship

If we are to prevent the worst effects of climate change, a major shift in the world’s energy systems will be needed, including the construction of a massive number of clean energy facilities. Under one well-known scenario, this will require — along with many other actions — the construction of 230 wind farms the size of the proposed Cape Wind project in Nantucket Sound; 1,000 large solar generating facilities of about ten square miles each; 1,400 natural gas-fired electric generating stations; 800 carbon capture and sequestration systems at coal-fired power plants; and 850 new nuclear power plants.

The Cape Wind …

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.

Survey Of 2012 Cases Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

The courts issued 55 decisions in 2012 under the State Environmen­tal Quality Review Act (SEQRA).1 As this annual survey shows, especially important decisions concerned the necessity of supplemental environmental impact statements (EISs), and the relationship of SEQRA to various federal laws.

The State Department of Environmental Conservation (DEC) was also busy. On Jan. 15, 2012, DEC adopted revised short and full environmental assessment forms, which are used in determining whether full EISs are needed. The new forms become effective on Oct. 7, 2013. They will be accompanied by workbooks and by an updated web-based geographic information system search engine to …

Reducing Legal Hurdles To Combined Heat And Power In New York, Michael B. Gerrard

Faculty Scholarship

Combined heat and power (CHP or cogeneration) is the simultane­ous production of electricity and thermal energy from a single fuel source. Most CHP systems in New York City use natural-gas fired turbines or reciprocating engines to generate electric­ity and then capture heat from the com­bustion generator’s exhaust stream and cooling systems.

Federal Executive Actions To Combat Climate Change, Michael B. Gerrard

Faculty Scholarship

“I urge this Congress to pursue a bipartisan, market-based solution to climate change, like the one John McCain and Joe Lieberman worked on together a few years ago. But if Congress won’t act soon to protect future generations, I will. I will direct my cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”
—President Barack Obama State-of-the-Union Message Feb. 12, 2013

In the current partisan atmosphere in Washington, there appears to be …

Courts Rulings Accept Climate Science, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this science, …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …