Environmental Law Commons^™

Don’T Throw Caution To The Wind: In The Green Energy Transition, Not All Critical Minerals Will Be Goldmines, Perrine Toledano, Martin Dietrich Brauch, Solina Kennedy, Howard Mann

Columbia Center on Sustainable Investment Staff Publications

The green energy transition will be exceedingly mineral intensive. Manufacturing solar panels, wind turbine and batteries to power cleaner energies is set to significantly increase the demand for co-called “critical” minerals. Such a forecast prompts high expectations in mineral-rich countries and suggests promising opportunities for developing countries.

However, the projects to increase the primary extraction of critical minerals rest on bullish forecasts and uncertain terrain due to a number of factors explored in the paper that threaten to leave these investments obsolete and economically stranded.

Governments, international actors, and mining advocates seeking to optimize the value of green energy mineral …

Submission To Bonsucro Re Production Standard V5 (2019-21), Nami Patel, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In July 2020, CCSI made a formal submission to Bonsucro, an international multi-stakeholder initiative and certification scheme concerned with promoting sustainable sugar cane production. The submission formed part of consultations for Bonsucro’s draft Production Standard version 5. CCSI’s submission focused on challenges associated with implementing, and auditing for compliance with, three aspects of Bonsucro’s draft standard, namely:

• Obtaining the free, prior and informed consent (FPIC) of Indigenous and traditional communities when establishing or expanding sugar production operations
• Implementing transparent and participatory processes to assess, monitor, and evaluate the environmental and social impacts of new and existing projects; and
• Establishing accessible …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Investor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how consultation …

Best Practices In Data Driven Development Planning In Mining Regions, Nicolas Maennling, Josefina Correa

Columbia Center on Sustainable Investment Staff Publications

Strategic development planning has long been used by private and public sectors to guide actions that will lead to a determined goal in the medium- to long-term. The SDG framework has helped to create a common language of what development means, what the global objectives are by 2030, and how progress can be measured. With the world entering an era in which data is generated and used at an unprecedented scale, data and ICT systems should be used to better inform policy decision making and help evaluate progress to hold stakeholders accountable to their promises and performance. This report outlines …

Law In The Time Of Covid-19, Katharina Pistor

Faculty Books

The COVID-19 crisis has ended and upended lives around the globe. In addition to killing over 160,000 people, more than 35,000 in the United States alone, its secondary effects have been as devastating. These secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools.

This volume offers guidance for thinking about some the most pressing legal issues the …

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: U.S.-Kenya Trade Agreement (April 28, 2020): CCSI, in response to the United States Trade Representative’s request for public comment to inform its approach to a U.S.-Kenya Trade Agreement, submitted Comments elaborating on our main points that (1) investor-state dispute settlement should not be included in any U.S.-Kenya agreement and (2) principles that should guide an investment chapter or investment provisions in any such agreement should (a) strategically support cross-border investment that produces positive development outcomes for the U.S. and Kenya, (b) facilitate and support good governance of investment projects, and (c) enhance cooperation to solve challenges …

A Review Of Sierra Leone’S Mines And Minerals Act, Tehtena Mebratu-Tsegaye, Perrine Toledano, Sophie Thomashausen

Columbia Center on Sustainable Investment Staff Publications

With the support of Oxfam, the Columbia Center on Sustainable Investment reviewed select provisions in the Mines and Minerals Act 2009 and corresponding policy statements from the Minerals Policy 2018 to provide recommendations for how to best align the anticipated new mining law with international best practice. The 2009 law was reviewed with a focus on the following topics:

• Fiscal regime;
• Climate change;
• Access to and use of land;
• Community consultations and participation;
• Human rights; and
• Community development agreements.

The policy brief aims to support the Government of Sierra Leone in the ongoing law reform process.

Preparing Legal Frameworks For Environmental Disasters: Practical Considerations For Host States, Brooke Guven, Perrine Toledano, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Projects in the extractives sector carry risks of lasting, and sometimes irreversible, damage to the environment. Nonetheless, these projects are important for accelerating the economic development of host countries. Governments seeking to mitigate the adverse effects of foreign investment often face pushback from investors that are unwilling to change their practices in order to avert environmental disaster. This report sets forth certain steps that host-governments can take during the pre-investment, operation, and enforcement phases of extractives projects to provide financial and other protection in the context of environmental disasters associated with private sector investments.

Upon comparative review of five Case …

Electric Utility Alignment With The Sdgs & The Paris Climate Agreement, Perrine Toledano, Aniket Shah, Nicolas Maennling, Ryan J. Lasnick

Columbia Center on Sustainable Investment Staff Publications

The 2030 Sustainable Development Agenda poses a unique and critical challenge to the energy sector: how to scale access to clean energy to power sustainable, economic development for a growing population, while simultaneously decarbonizing global energy supply. Expanding access to clean energy will play a crucial role in achieving nearly every one of the Sustainable Development Goals, including those related to agricultural production, health outcomes, educational performance, water systems, access to infrastructure, and reducing inequalities. However, practices by some actors in the energy sector, and continued over-reliance on greenhouse gas-intensive fossil fuels also undermine global efforts to mitigate climate change …

The Regulatory Vacuum: How Marijuana's Schedule I Status Imperils Endangered Species In The Emerald Triangle, Jeffrey Bausch Jr.

Animal Law Review

The U.S. Fish and Wildlife Service (the Service) is unable to adequately address Endangered Species Act (ESA) petitions because marijuana’s Schedule I status creates a regulatory vacuum. Marijuana growers use pesticides, many of which are lethal at certain concentrations. Typically, these pesticides are highly regulated by the Environmental Protection Agency (EPA). Farmers may only use pesticides specifically prescribed for use on the plant or crop. EPA has been unable to research or register pesticides for use on marijuana plants, and as a result, growers use pesticides at abnormally high concentrations. Wildlife in northern California and Oregon are directly harmed as …

Executive Summary On Ensuring Economic Viability And Sustainability Of Coffee Production, Jeffrey D. Sachs, Kaitlin Y. Cordes, James Rising, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Coffee, the world’s favorite beverage, provides livelihoods for at least 60 million people across dozens of countries. Yet this beloved drink is experiencing a sustainability crisis. A sustained decline in world coffee prices has squeezed coffee producers, and thrown a tremendous number of producers below the global extreme poverty line of US$1.90 per day. This briefing note presents our research into sustainability within the coffee sector, including the results of our analytical and empirical modeling, and provides several recommendations.

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 …

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 …

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 …

Aligning Investment Treaties With Sustainable Development Goals, Lise Johnson, Lisa E. Sachs, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

Policy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.

A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.

The paper proposes that IIAs should be designed and evaluated with respect to their ability to …

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

Legal Frameworks & Foreign Investment: A Primer On Governments’ Obligations, Kaitlin Y. Cordes, Lise Johnson, Sam Szoke-Burke, Rumbidzaii Mawen

Columbia Center on Sustainable Investment Staff Publications

Legal frameworks, and how they interact, are often invisible in the day to day. Yet they are powerful forces that influence government actions and that help to shape who benefits and who loses from foreign investment. Understanding these legal frameworks, and how they interact, is critical for anyone concerned with how foreign investment can be better harnessed to support, rather than weaken, sustainable development and human rights.

This primer provides a brief overview of host government obligations under international investment law, international human rights law, domestic law, and relevant investor-state contracts. It also highlights some of the ways in which …

Outcome Report On The Climate Crisis, Global Land Use And Human Rights Conference, Mateusz Kasprowicz, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

On September 27^th, the Columbia Center on Sustainable Investment (CCSI), the Sabin Center for Climate Change Law, Landesa, the New York City Bar Association International Environmental Law Committee, and Wake Forest Law School hosted a day-long conference on the intersection between land use, the climate crisis and clean energy transition, and human rights.

Held at the Ford Foundation Center for Social Justice, the conference brought together individuals from civil society organizations, governments, and academia, as well as lawyers, climate scientists, land-rights experts, indigenous representatives and other stakeholder groups. The panelists analyzed the critical role that land plays in …

Environmental Injustice: How Treaties Undermine The Right To A Healthy Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Our planet faces unprecedented threats, including irreversible global warming, loss in biodiversity, and water pollution and water scarcity. The impacts of these environmental crises also threaten human rights and exacerbate inequality. Slowing these worsening environmental trends – and addressing the impacts of environmental change on populations – will require cumulative policy responses at the national and international level.

Coastal Cultural Heritage Protection In The United States, France And The United Kingdom, Ryan Rowberry, Ismat Hanano, Sutton M. Freedman, Michelle Wilco, Cameron Kline

Journal of Comparative Urban Law and Policy

Exacerbated by climate change, sea levels are rising rapidly. This poses a significant, immediate threat to coastal or riverine urban areas and the tangible cultural heritage (e.g. artifacts, buildings, monuments, archaeological sites) that makes them unique. Protecting coastal cultural resources from climate change is quickly becoming a global priority, and comparing cultural heritage laws designed to protect historic resources in coastal areas from several countries may illuminate potential paths forward. Following a brief discussion of the economic and public health benefits arising from the protection of cultural heritage, this article describes, examines, and compares the legal frameworks through which the …

Ensuring Economic Viability And Sustainability Of Coffee Production, Jeffrey D. Sachs, Kaitlin Y. Cordes, James Rising, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Coffee, the world’s favorite beverage, provides livelihoods for at least 60 million people across dozens of countries. Yet this beloved drink is experiencing a sustainability crisis. A sustained decline in world coffee prices has squeezed coffee producers, and thrown a tremendous number of producers below the global extreme poverty line. This report presents our research into sustainability within the coffee sector, including the results of our analytical and empirical modeling, and provides several recommendations.

Linkages To The Mining Sector In Colombia, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

At the request of the Colombian Government and with the support of GIZ, CCSI prepared a policy brief focused on linkages from the mining sector in Colombia. The brief gives an overview of existing regulatory requirements, government policies and company programs to foster economic and infrastructure linkages. Based on the findings, the brief provides suggestions for next steps if the government is to develop a more comprehensive linkage creation program.

Fixing The Business Of Food: The Food Industry And The Sdg Challenge, Barilla Center For Food And Nutrition, Sustainable Development Solutions Network, Columbia Center On Sustainable Investment, Sanda Chiara Lab

Columbia Center on Sustainable Investment Staff Publications

In collaboration with the Barilla Center for Food and Nutrition, the UN Sustainable Development Solutions Network, and the Santa Chiara Lab of the University of Siena, CCSI presented its first report on Fixing the Business of Food.

The document, part of a two-year effort, highlights the sustainable development challenge faced by the food industry. By proposing a Four Dimension framework, the report asks four overarching questions for companies in the food sector to address alignment with the SDGs:

1. Does the company contribute to healthy and sustainable dietary patterns through its products and strategy?
2. Are the company’s production processes economically, socially, …

Briefing For Civil Society Organizations – Understanding Commercial Eucalyptus Plantations: How Do They Work And What Are Their Environmental Impacts?, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

If a company wants to use a community’s land for eucalyptus plantations, the community should think carefully about whether this is a good idea. Civil society organizations that support communities can use this briefing to help communities understand the potential environmental impacts the community should be aware of. The briefing explains plantation forestry and the life-cycle of eucalyptus tree plantations. It also notes the different possible negative environmental impacts of eucalyptus plantations before exploring how this information can be factored into community decision-making about a proposed eucalyptus plantation. While the briefing focuses on eucalyptus plantations, a lot of it will …

Modelling For Sustainable Development: New Decisions For A New Age, Andrea M. Bassi, Liesbeth Casier, David Laborde, Max Linsen, David Manley, Nicolas Maennling, Howard Mann, Morten Siersted, Carin Smaller, Iain Steele, David Uzsoki, Johnny West

Columbia Center on Sustainable Investment Books

This book outlines how next-generation models need to integrate social and environmental components in government and corporate decision-making. Traditionally, these models have focused on profits and taxes, but to achieve the UN’s Sustainable Development Goals, they need to take a more holistic view. The book builds on the expanding practices of modelling complex decision making requirements and indicators. It considers the challenges of decision making in the face of incomplete and sometimes inaccurate information, the role of multiple stakeholders, and the capacity of governments and others to use models effectively.

Hoopa Valley Tribe V. Ferc, Fredrick Aaron Rains

Public Land & Resources Law Review

In Hoopa Valley Tribe v. FERC, the Hoopa Valley Tribe challenged the intentional and continual delay of state water quality certification review of water discharged from a series of dams on the Klamath River in California and Oregon. The Federal Energy Regulatory Commission, the states of Oregon and California, and PacifiCorp, a hydroelectric operator, were implementing an administrative scheme designed to circumvent a one-year temporal requirement for review imposed on states by the Clean Water Act. This scheme allowed PacifiCorp to operate the series of dams for over a decade without proper state water quality certification. The United States …

Innovative Financing Solutions For Community Support In The Context Of Land Investments, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Communities affected by agricultural, forestry, and other resource investments urgently need increased funding for legal and technical support. Without support, communities risk losing access to critical land and resources, suffering human rights violations, or missing opportunities to benefit from investments. A lack of community support can also lead to conflict and challenges that are damaging for companies and host governments.

Donors and support providers have found ways to finance support for communities, but such efforts can only extend so far. Promising new opportunities exist for filling the financing gap, yet they will require sustained efforts by a range of actors. …

How International Oil Companies Could Assist Greece To Achieve The Sustainable Development Goals: A Conversation Starter, Alexandra Sdoukou, Andreas Tornaritis, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

This policy paper wishes to be a timely contribution towards a fruitful debate among stakeholders; it urges International Oil Companies (IOCs) to examine how the critical Sustainable Development Goals (SDGs) for Greece can be integrated into their core business so that the oil and gas industry can contribute to the country’s sustainable growth.

Bridging The Information Gap: How Access To Land Contracts Can Serve Community Rights, Lara Wallis, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Land contracts (also known as investor-state contracts, or concession agreements) show what commitments a forestry, farming or renewable energy company has made and what the government has said the company can do on the land. These promises define the positive and harmful effects the company’s project could have on community members’ livelihoods and human rights, and on the environment.

Accessing land contracts is a crucial strategy for local organizations. This briefing note explains how local organizations can use land contracts and the Open Land Contracts repository (OpenLandContracts.org) to help communities to:

• Understand company and government obligations related to a company …