Environmental Law Commons^™

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 …

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 …

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, …

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.

"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. …

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 …

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.

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.

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.

Bundling Solutions For Financing Building Energy Efficiency Retrofit Projects In Residential And Commercial Buildings, Michael Kerstetter

Sabin Center for Climate Change Law

Buildings are responsible for approximately 40% of overall national energy consumption and renewed investment in energy efficiency (EE) projects and measures in that sector, in particular, could potentially save consumers and the U.S. economy billions of dollars, create jobs and significantly reduce the emission of greenhouse gasses. Accordingly, a comprehensive and well crafted economy-wide EE solution should include programs for the upgrading or retrofitting of existing residential and commercial structures. Although there is already investment in these types of projects, significant potential still remains for further investment. The subjects discussed in this paper could serve as a useful starting point …

Public Utilities Commissions & Energy Efficiency: A Handbook Of Legal And Regulatory Tools For Commissioners & Advocates, Shelley Welton, Chen Xu, Brian Troxler, Chao Huang, Andrew Kirchner, Krista Yacovone, Maria Hristova

Sabin Center for Climate Change Law

This handbook examines the range of legal and regulatory tools that state PUCs have to promote energy efficiency. It draws from a broad and deep body of literature on the topic, an examination of relevant state laws and regulations, and interviews with experts in the private and public sectors. The handbook may prove useful in those states that are more advanced in their energy efficiency policies by illuminating potential refinements or alternative design options in areas that prove to be sticking points. It is intended primarily, however, as a resource for those in states that are not yet as advanced …

Livestock And Climate Change – Annotated Bibliography, Julia Christian, Andrew Kirchner, Derek Nelson, Jessica A. Wentz

Sabin Center for Climate Change Law

Over the past two decades, efforts to address climate change have primarily focused on reducing carbon dioxide (CO2) from fossil fuel combustion. The potential contribution of livestock production to climate change has been largely overlooked. Recent scholarship suggests that activities related to livestock production constitute a significant proportion of anthropogenic greenhouse gas (GHG) emissions. Although estimates of livestock’s contribution to our overall GHG emissions range broadly – from 18% to 51% – there is no question that this impact warrants serious consideration from policy makers.

State Dynamism, Federal Constraints: Possible Constitutional Hurdles To Cross-Border Cap-And-Trade, Shelley Welton

Sabin Center for Climate Change Law

This article explores the constitutional viability of expanding domestic, state-run cap-and-trade programs to include Canadian provinces. It examines four constitutional doctrines that might be used to challenge these cross-border collaborations: preemption, the dormant foreign affairs power, the Compact Clause, and the dormant foreign Commerce Clause. Ultimately, it makes the case that while these doctrines are flexible enough that they could be interpreted to prohibit cross-border cap-and-trade, courts would be wise to let these novel and commendable state initiatives proceed.

Analysis Of California, Washington, And New York Insurer Climate Risk Surveys For The 2011 Reporting Year, Irene Shulman

Sabin Center for Climate Change Law

Climate change has the potential to affect the availability and affordability of insurance across most major insurance categories. The National Association of Insurance Commissioners (NAIC) adopted the Insurer Climate Risk Disclosure Survey in 2009, and in February 2012, California, Washington, and New York administered the survey to insurance companies that write in excess of $300 million in premiums annually. This working paper summarizes and analyzes the survey responses that were submitted to California, Washington, and New York in 2012 for the 2011 reporting year. The working paper found that the majority of the 400 survey responses indicated that climate change …

Obama Reelection Clears Path For Numerous New Epa Regulations, Michael B. Gerrard

Faculty Scholarship

The reelection of President Barack Obama means that a long list of new regulations will be issued by the Environmental Protection Agency (EPA) in the coming months. Some had been held up because of their political sensitivity, and others were still in process, but many will soon be ready for further action.

The election results also mean that major new environmental legislation is very unlikely for the next two years. The House of Representatives is still firmly controlled by the Republicans, and their leadership has not signaled any major change from the last Congress’ stance of opposition to many EPA …

Mexico's General Climate Change Law, Michael B. Gerrard, Anne Siders

Faculty Scholarship

Mexico’s General Climate Change Law (CCL) creates a coherent and ambitious national framework within which Mexico may fulfill its Copenhagen Pledge and establish itself as an international leader in climate change mitigation, but achieving these ends will require significant and on-going support from the Mexican government.

Encouraging Energy Efficiency Through Nepa Comments, Adam Reidel

Sabin Center for Climate Change Law

Environmental impact statements (EISs) should analyze the potential for energy efficiency to reduce the adverse impacts of new projects, to make the projects smaller, or to provide more benign alternatives. The National Environmental Policy Act (NEPA) and its state counterparts require EISs for major actions, and provide numerous opportunities for public participation in the EIS process. These opportunities can be used to press for greater consideration, and perhaps adoption, of energy efficiency measures. This paper serves as a guide to commenting on and challenging EISs on the basis of insufficient consideration of the issues of energy efficiency and conservation. It …

Consideration Of Climate Change In Federal Eiss, 2009-2011, Patrick Woolsey

Sabin Center for Climate Change Law

In recent years, climate change has become an increasingly prominent subject of discussion in EISs. A comparison of agency approaches to EIS scope and methodology shows widely varying treatment of climate change impacts. Agencies differ in the methods used to calculate emissions and assess their significance. In addition, the types of indirect impacts addressed and the extent to which the impacts of climate change on the project are included vary.

Legal Issues In Regulating Imports In State And Regional Cap And Trade Programs, Erin Parlar, Michael Babakitis, Shelley Welton

Sabin Center for Climate Change Law

Regulating leakage presents potential legal challenges: in our federal governmental structure, states are limited by the Constitution in the extent to which they can regulate activities occurring beyond their own borders, and may be preempted by federal statutes from regulating certain interstate activities altogether. This paper analyzes the legal hurdles that RGGI may face should it choose to address emissions leakage through regulating imported electricity. It focuses on two legal issues in particular, which are generally thought to be the most likely arguments raised against imports regulations: (1) whether imports regulations violate the dormant Commerce Clause (DCC) of the Constitution; …

What Litigation Of A Climate Nuisance Suit Might Look Like, Michael B. Gerrard

Faculty Scholarship

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly left ajar the door to litigation under state (as opposed to federal) common law for greenhouse gas (GHG) emissions. Some plaintiffs' lawyers are also arguing that the decision leaves room for seeking money damages (rather than injunctive relief) even in a federal common law case.

For purposes of this Article, let's imagine a world in which the courthouse doors are swung open to common law claims for damages for GHG emissions, and the courts have rejected all defenses based on displacement, preemption, political question, and standing. In …

The Quest For A Sustainable Future And The Dawn Of A New Journal At Michigan Law, David M. Uhlmann

Articles

When I joined the faculty of the University of Michigan Law School in 2007, the first assignment I gave students in my Environmental Law and Policy class was John McPhee's Encounters with the Archdruid. It must have seemed like a curious choice to them, particularly coming from a professor who just three months earlier had been the Chief of the Environmental Crimes Section at the U.S. Department of Justice. The book was not a dramatic tale of courtroom battles. In fact, the book was not even about the law, and the clash of environmental values it depicted pre-dated the environmental …

Hurricane Katrina Decision Highlights Liability For Decaying Infrastructure, Michael B. Gerrard

Faculty Scholarship

A March 2, 2012, decision from the U.S. Court of Appeals for the Fifth Circuit, little noticed outside of New Orleans, has broad implications for the liability of federal agencies for injuries caused by the decay or obsolescence of infrastructure due to erosion, sea level rise, and other ongoing conditions, whether of natural or human origin. Less directly, the decision also affects the liability of state and municipal governments, and even private entities in charge of built structures.

This article describes the underlying facts, the decision, and its implications. It also considers how governments and private parties can, to a …

Reverse Environmental Impact Analysis: Effect Of Climate Change On Projects, Michael B. Gerrard

Faculty Scholarship

Environmental impact statements (EISs) examine the effect of the proposed action – typically a construction project, but sometimes a government policy or other activity – on the environment. However, increasing attention is now devoted to looking in the other direction – at how changes in the environment might affect a project.

Reverse environmental impact analysis, as I will call it, has been with us for some time. For example, if a building is planned downwind of a smokestack or downstream of a contaminated groundwater plume, this effect of the outside world has long been considered. However, the emergence of scientific …

Ferc Order 1000 As A New Tool For Promoting Energy Efficiency And Demand Response, Shelley Welton, Michael B. Gerrard

Faculty Scholarship

In July 2011, the Federal Energy Regulatory Commission (FERC) issued Order No. 1000, the latest in a series of orders directed at improving federal transmission access, planning, and coordination.1 Order 1000 requires, for the first time, that electricity transmission providers engage in regionwide transmission planning, and further mandates that such planning consider how federal and state public policies affect transmission needs. Public utility transmission providers are now in the process of amending their operating tariffs to comply with this new order. It is therefore an important time for all those with an interest in the future of the electric grid …

State Public Utility Commissions' Powers To Advance Energy Efficiency, Michael B. Gerrard

Faculty Scholarship

Improving energy efficiency is widely acknowledged as the most economical way to reduce greenhouse gas emissions and the other adverse environmental impacts of fossil fuel use. Indeed, efficiency measures often yield net cost savings over a fairly short period of time.

The United States lacks a comprehensive regulatory program for energy efficiency. The Environmental Protection Agency and the Department of Transportation set fuel economy standards for motor vehicles (and on Aug. 28, 2012, finalized a major tightening of those standards). The Department of Energy sets many appliance standards and administers certain grant and research programs. The Federal Energy Regulatory Commission …