Environmental Law Commons^™

Investment Promotion Agencies And Sustainable Fdi: Moving Toward The Fourth Generation Of Investment Promotion, Columbia Center On Sustainable Investment, World Association Of Investment Promotion Agencies

Columbia Center on Sustainable Investment Staff Publications

In April and May 2010, CCSI supported WAIPA to conduct its annual survey. This report, Investment Promotion Agencies and Sustainable FDI: Moving toward the Fourth Generation of Investment Promotion, benchmarks the responses of IPAs regarding sustainable FDI and its four dimensions (economic development, environmental sustainability, social development, governance) and finds, among other things, that these are unevenly addressed by investment promotion strategies and investment incentives. The report also draws attention to the desirability of attracting sustainable FDI, rather than focusing on volume of investment alone.

In 2017, CCSI also helped the World Association of Investment Promotion Agencies (WAIPA) to conduct …

Colorado’S Clean Air-Clean Jobs Act: Encouraging Conversion Of Coal Plants To Natural Gas, Jonathan Talamini

Sabin Center for Climate Change Law

The State of Colorado's recently-enacted Clean Air-Clean Jobs Act (CACJA) requires utilities to create plans that reduce NOx emissions by 70% at a specified portion of their coal-fired electricity generation facilities by the end of 2017. It allows utilities to use many different methods to achieve those reductions, but encourages and incentivizes the replacement of coal-based generation with natural gas. Utilities must seek approval for their plans from state agencies and must work closely with those agencies in designing the plans. This paper discusses the legal, political, and economic context for CACJA, and highlights the bill's advantages and disadvantages as …

"It's Not Easy Being Green": Local Initiatives, Preemption Problems, And The Market Participant Exception, Michael Burger

Sabin Center for Climate Change Law

This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments – along with the states – positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their …

Epa's Impending Greenhouse Gas Regulations: Digging Through The Morass Of Litigation, Gregory E. Wannier

Sabin Center for Climate Change Law

As the U.S. Congress has failed to pass meaningful climate legislation, the EPA has initiated a series of regulations under the Clean Air Act designed to recognize greenhouse gases as endangering human health and welfare, and set greenhouse gas emission standards for vehicle fleets and for major stationary sources. Unsurprisingly these efforts have been challenged in the DC Circuit Court of Appeals. This paper discusses both the substantive and procedural issues surrounding the cases, all of which merit attention: in the absence of viable climate legislation these decisions will have important bearing on the extent to which the United States …

Preemption And Alteration Of Epa And State Authority To Regulate Greenhouse Gases In The Kerry-Lieberman Bill, Bradford Mccormick, Hannah Chang

Sabin Center for Climate Change Law

The recently-released discussion draft of the Kerry-Lieberman bill (KL), officially titled the American Power Act, contains numerous provisions that affect the role of states in addressing climate change as well as the Environmental Protection Agency’s (EPA) authority under the Clean Air Act (CAA). Preemption has been the subject of intense debate and speculation since the passage of the Waxman-Markey climate bill (WM) in June 2009, and commentators have questioned whether KL’s preemption measures would (and should) have the effect of “a scalpel or a sledgehammer” on existing state and EPA authority. The following paper contributes to the discussion by summarizing …

Cap-And-Trade Under The Clean Air Act?: Rethinking Section 115, Hannah Chang

Sabin Center for Climate Change Law

Section 115 of the Clean Air Act, addressing international air pollution, is widely-dismissed as a viable avenue for mitigation of greenhouse gases (GHGs) because of a misplaced assumption that National Ambient Air Quality Standards (NAAQS) must be established for GHGs before Section 115 authority can be exercised for GHGs. This paper explores the statutory language and legislative history of Section 115 to refute this conventional view, and argues that Section 115 can play a role in facilitating the establishment of a cap-and-trade program for GHGs without the establishment of NAAQS for GHGs.

The Epa’S Proposed Transport Rule: Implications For Climate Change Regulation, Jessica A. Wentz

Sabin Center for Climate Change Law

On July 6, 2010, the U.S. Environmental Protection Agency (EPA) proposed a Clean Air Act rulemaking to reduce sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from power plants in the eastern United States. If it survives legal scrutiny, the rule will impose a hybrid cap-and-trade program with state-specific SO2 and NOx emission budgets and limited interstate trading. This paper discusses the rule's requirements, how it compares to its predecessor (the Clean Air Interstate Act), the projected impact on air quality and public health, and implications for future climate change policy.

Municipal Green Building Ordinances In The U.S., Marne Sussman

Sabin Center for Climate Change Law

Numerous municipalities in the U.S. have created green building ordinances over the past few years. These ordinances are cataloged and examined in the municipal green building ordinance spreadsheets on the website of the Center for Climate Change Law. To better understand the decisions that need to be made in developing a model green building ordinance, this paper discusses the different choices made by the municipalities that developed the ordinances identified in the spreadsheets and notes areas of consensus among municipalities.

Introductory Comments: The Current State Of Climate Change Law, Michael B. Gerrard

Faculty Scholarship

The three words that best characterize the current state of climate change law are fragmentation, uncertainty, and insufficiency.

Climate Change And The Wto: Legal Issues Concerning Border Tax Adjustments, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Climate change is a multi-faceted discussion: for the trading community, one of many contentious issues in the policy debate over how to deal with greenhouse gas (GHG) emissions is the appropriate role of Border Carbon Adjustments (BCAs)/Border Tax Adjustments (BTAs). The role of BCAs has been analyzed in a very large policy discussion literature, as well as in a significant number of academic writings in both law and economics. One can safely summarize the state of each of these literatures as bewildering: in the legal literature there is still no consensus as to whether such measures are legal under the …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Model Green Building Ordinance For Municipalities Open For Comment, Michael B. Gerrard

Faculty Scholarship

In 2009, the residential and commercial building sector was responsible for more than 50 percent of total annual U.S. energy consumption, 74 percent of total U.S. electricity consumption, and 39 percent of total U.S. greenhouse gas emissions.

There has been a growing movement to encourage “green buildings” – those that generally use water, energy and materials more efficiently than conventional buildings, and utilize design, construction and siting features to reduce their negative environmental impacts.

Model Green Building Ordinance Proposed For Adoption By New York Municipalities, Michael B. Gerrard, Jason James

Faculty Scholarship

After failing to pass in the 111th Congress, comprehensive federal climate legislation appears stalled until at least 2013. Regulation of greenhouse gas emissions under existing federal law, while progressing, has encountered challenges. Even state initiatives, such as California's A.B. 32, lie on less than certain ground. But not all action to reduce greenhouse gas emissions must be taken on the federal or state level. Through regulating buildings, municipalities can play a crucial role in reducing greenhouse gas emissions while improving the health and welfare of their local communities.

In 2009, the residential and commercial building sector was responsible for more …

International Agreements, Internal Heterogeneity, And Climate Change: The "Two Chinas" Problem, Daniel Abebe, Jonathan S. Masur

Faculty Scholarship

Every quantitative forecast of Chinese emissions – save for two important exceptions – uses only national-level data, a methodological weakness that can wash out distinctions between East and West. Of the two studies that employ sub-national data, one projects higher emissions than any of the national-level studies; the other projects much higher emissions than any other study. We read this as suggesting that Chinese carbon emissions over the forthcoming several decades may be significantly greater than the standard models have anticipated, with correspondingly higher costs to China from any agreement to curb carbon emissions. In light of the importance of …

Climate Regulation Without Congressional Action, Michael B. Gerrard

Faculty Scholarship

The apogee of congressional support for comprehensive climate change legislation came on June 26, 2009, when the House of Representatives passed the American Clean Energy Security Act (Waxman-Markey) by a vote of 219 to 212. Its Senate counterpart, the American Power Act, known first as Kerry-Lieberman-Graham and then just Kerry-Lieberman, never gained traction, and in July 2010 Senate Majority Leader Harry Reid (D.-Nev.) announced he would not bring it to the floor this year.

Many observers believe Republicans will take control of the House and possibly of the Senate after the Nov. 2, 2010, elections. Republican leadership in both chambers …

Litigation Under Seqra Declining, Exemption Use Is Rising, Michael B. Gerrard

Faculty Scholarship

The State Environmental Quality Review Act (SEQRA), the statute that requires the preparation of environmental impact statements (EISs) for discretionary actions by state and local governments that may have a significant effect on the environment, has long been by far the most fertile source of environmental litigation in New York. That is still so, but the volume has declined, probably because much of such litigation grows out of disputes over proposed construction projects, and there are fewer of those in the recent recession.

Defining The Challenge In Implementing Climate Change Policy, Michael B. Gerrard

Faculty Scholarship

When Jonathan Cannon, Michael Vandenbergh, and I started planning this conference last summer, we planned to call it “Implementing Climate Change Legislation.” We assumed that by today a new law aimed at addressing climate change would be in place, or at least would be in the final polishing stage, in the United States. We even imagined that the federal agencies would be rolling up their sleeves to implement not only the new U.S. climate law but also our part of the comprehensive climate pact that the nations of the world had agreed to in Copenhagen.

Greenhouse Gas Disclosure Requirements Are Proliferating, Michael B. Gerrard

Faculty Scholarship

While climate change legislation is mired in Congress, several units in the Obama administration have been using their existing statutory authority to adopt rules or guidance requiring extensive disclosures about greenhouse gases (GHGs) in a wide variety of contexts. Every registered public company, the operators of many industrial facilities, and those involved in significant federal actions are now or will soon be covered by one or more of these requirements.

International Executive Agreements On Climate Change, Hannah Chang

Sabin Center for Climate Change Law

The difficulty of ratifying any future climate change agreement through the Article II treaty process calls for an understanding of the scope of the President’s independent power to enter into internationally binding commitments related to climate change. This power is necessarily limited, but as this paper shows, the President’s foreign affairs powers, together with authority derived from existing treaty obligations and federal statutes, provide legal authority for the President to enter executive agreements relating to measurement, reporting, and verification; aviation emissions; cooperative research and development in science and technology; and capacity-building for developing countries.

Confronting A Rising Tide: A Proposal For A Convention On Climate Change Refugees, Bonnie Docherty, Tyler Giannini

Sabin Center for Climate Change Law

This Article proposes a new legal instrument to confront the issue of climate change refugees. It defines climate change refugees as people whom climate change forces to relocate across national borders. The existing international legal framework – including its laws and its institutions – does not adequately address the emerging crisis. The proposed instrument should create obligations to deal with both prevention and remediation of the climate change refugee problem. First, the instrument should establish guarantees of human rights protections and humanitarian aid for a specific class of people. Second, it should spread the burden of fulfilling those guarantees across …

Addressing The Energy Efficiency Financing Challenge: The Role And Limitations Of A Green Bank, Christopher Angell

Sabin Center for Climate Change Law

This paper will address how a federal program to aggregate and potentially guarantee loans made to finance energy efficiency projects can be leveraged to promote best practices on the state and local level for opening up energy efficiency projects to external financing. There are a number of existing financing tools that have started to solve the problem of providing access to capital for efficiency projects, but the programs are all relatively small and have had limited market penetration. One essential, but not exclusive, solution will be to create a federal entity, based on existing green bank proposals, that has the …

Painting Redd Offsets Green: A Case For Statutory Deuteranopia, Rommel Casis

Sabin Center for Climate Change Law

Offsets generated by projects for reducing emissions from deforestation and degradation (“REDD”) is a particularly controversial form of carbon offset. Excluded from the Kyoto Protocol mechanisms, REDD offsets are now making a comeback ever since the Bali Action Plan specifically referred to REDD. Most recently, the Copenhagen Accord recognized the crucial role of REDD and the need to enhance removals of GHG emissions by forests and agreed on the need to provide incentives to such actions to enable the mobilization of financial resources from developed countries.4 It would seem therefore that the issuance and trade of REDD offsets may finds …

Cash For Clunky Appliances, Anna S. Fleder

Sabin Center for Climate Change Law

This paper examines the viability of a “Cash for Appliances” (“CfA”) program that targets home appliances toward the goal of increasing energy efficiency and decreasing greenhouse gas (“GHG”) emissions. Analyzing an existing CfA effort at the federal level, this paper argues that the case for a federal CfA program is strong, but that the current federal effort falls short of fulfilling its potential. The analysis proceeds in four parts. Part I makes the case for a Cash for Appliances program as a policy tool for promoting energy efficiency. Part II examines existing programs that have done just this – utilized …

What Has To Change For Forests To Be Saved? A Historical Example From The United States, Jedediah S. Purdy

Faculty Scholarship

This article looks at the conservation of American forests in the nineteenth and twentieth centuries to cast light on the prospects for global forest conservation in the twenty-first. At the beginning of the nineteenth century, Americans understood their forests as good only for cutting. By the end of the century a national scheme existed for comprehensive and permanent forest conservation. This new scheme became possible thanks to changes in scientific knowledge, the ideological self-image of the country, political institutions, and the imagination and moral commitments of citizens and social movements. A look at the changes that laid the foundations of …

Climate Change And The Right To Food: A Comprehensive Study, Human Rights Institute

Human Rights Institute

Climate change and the policies instituted to combat it are affecting the realiza- tion of the right to food in myriad, often unnoticed ways. This report highlights how – despite the common objective to preserve human welfare for present and future generations – the climate change regime and the human rights regime addressing the right to food have failed to coordinate their agendas and to collab- orate to each other’s mutual benefit. The current climate change regime fails to accurately address the human harms resulting from climate change itself, and is not operating with the necessary safeguards and preventive measures …

The Costs Of Carbon: Examining The Competitiveness And International Trade Dimensions Of The Waxman-Markey House Bill, Svetlana German

Sabin Center for Climate Change Law

As the United States considers unilateral climate change action, uncertainty exists as to the compatibility of the proposed trade related measures to global warming. This paper considers the rationale behind any trade measures designed to address competitiveness and carbon leakage following the introduction of unilateral climate change legislation (Part I). The paper then assesses the international legality of the proposed measures in the Waxman-Markey Bill under World Trade Organisation (WTO) law (Part II) and proposes alternative mechanisms that may yield economically sound solutions while remaining mindful of equitable principles (Part III).

On Capturing The Possible Significance Of Institutional Design And Ethos, Peter L. Strauss

Faculty Scholarship

At a recent conference, a new judge from one of the federal courts of appeal – for the United States, the front line in judicial control of administrative action-made a plea to the lawyers in attendance. Please, he urged, in briefing and arguing cases reviewing agency actions, help us judges to understand their broader contexts. So often, he complained, the briefs and arguments are limited to the particular small issues of the case. We get little sense of the broad context in which it arises – the agency responsibilities in their largest sense, the institutional issues that may be at …

Feeding Climate Change: Federal Food Procurement And Its Effects On Global Warming, Amanda Hungerford

Sabin Center for Climate Change Law

This paper examines the technical aspects and policy implications of each of four strategies to effectuate environmentally conscious policies in the federal government's food procurement procedures: a litigation strategy, a rulemaking strategy, a NEPA strategy, and a legislative strategy.

Access To Environmentally Sound Technology In The Developing World: A Proposed Alternative To Compulsory Licensing, Neel Maitra

Sabin Center for Climate Change Law

In 2008, a report published by McKinsey & Co. predicted that a successful program of action on climate change would require the reduction of greenhouse gas emissions by 76% by the year 2050. In order to achieve this seemingly daunting target, the report recognized that the transfer of environmentally sound technologies (ESTs) from the developed to the developing world was an urgent necessity. The report cited other sources to acknowledge that such technology transfer was unlikely to be achieved even by a combination of market incentives and funding from developed-world governments.

If market-oriented means, supported by governments, do not suffice …

Developing Municipal Wind Energy Ordinances In New York State, Jason James

Sabin Center for Climate Change Law

A jurisdiction that seeks to enact a municipal wind energy ordinance must first delineate areas suitable for wind energy projects in its comprehensive plan. Then, the municipality must choose a legal mechanism to regulate wind energy projects within those areas. Lastly, the municipality must write specific regulations addressing details such as size, location, and noise. This paper discusses the choices that a municipality in New York must make in drafting a wind energy ordinance, with reference to how existing codified wind energy ordinances and model municipal wind energy ordinances have dealt with these choices.