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Publications by Category: International and Foreign
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Title | Date | Description | Categories: | Note: | |
'American Electric Power' Leaves Open Many Questions for Climate Litigation | 2011-07 | Michael Gerrard | Clean Air Act, Energy, Publications, US Litigation | On June 20, 2011, the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut, the second climate change case to be decided by that Court and the first to concern common law claims. The decision resolves a few issues but leaves many others open. Published in Volume 246 of New York Law Journal. | |
"Green" Product Procurement Policy in the European Union: Treatment of Lifecycle Carbon Analysis and Environmental PPM Restrictions | 2014-01 | Shawna Ganley | International and Foreign, Publications | 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 of green product procurement in the EU. Despite these limitations, the paper explains that the EC is in the process of adopting policy changes that will likely enhance the ability of EU Member States to take upstream environmental impacts into account. This, in turn, could enable the EU to influence the broader market for green products by encouraging a shift towards upstream, supply chain carbon accounting. | |
10 Questions to Ask About the Proposed "Global Pact for the Environment" | 2017-08-25 | Susan Biniaz | International and Foreign, Publications | There is no doubt that more needs to be done, both nationally and internationally, to protect the environment. It is tempting, particularly during the Trump era, to welcome any concerted effort to do so. The issue is whether the proposed "Global Pact" is the right vehicle for enhancing environmental protection. This paper lists ten questions that should be asked in determining this. | |
2010 Developments Under State Environmental Quality Review Act | 2011-05 | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | Published in Volume 245 of New York Law Journal. | |
A Call to Action for New Yorkers | 2017-6-7 | Reprinted with permission from the "6-7-2017" edition of the "New York Law Journal"© 2017 ALM Media Properties, LLC. All rights reserved.Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - email@example.com. | New York, Publications | ||
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 | Energy, Energy Efficiency, Green Building, International and Foreign, Publications | This paper compares the approaches that regulators in the United States and European Union have taken to improve energy efficiency in the existing building stock. The measures evaluated are diverse and range from conventional regulatory approaches to innovative market-based instruments. Drawing on the European experience, the article outlines several recommendations for improving the energy efficiency of existing buildings in the United States. Published in Volume 5 of Seattle Journal of Environmental Law. | ||
A Mitigation Based Rationale for Incorporating a Climate Change Impacts Fee into the Federal Coal Leasing Program | 2016-09 | Michael Burger | Energy, Environmental Impact Assessment, Fossil Fuels, Natural Resources, NEPA, Publications | This paper describes the legal and policy rationale for imposing a fee on federal coal that reflects the costs of the climate change impacts generated by that coal. It notes that the federal government has a duty to mitigate climate impacts from the federal coal leasing program, and that the Department of Interior ("Interior") and the Bureau of Land Management ("BLM") have ample authority to impose a climate change impacts fee on coal leases as a form of compensatory mitigation for those coal leases. The paper also discusses technical issues that should be considered when assessing the effectiveness of this mitigation option, such as what metrics should be used to establish an appropriate fee and how a fee might work with carbon sequestration efforts and other emissions offsets. The paper was intended to inform the scope of the mitigation measures that Interior and BLM will consider in their programmatic environmental review of the federal coal leasing program, and was submitted directly to these federal agencies. | |
Abridged Version: Assessing the Impacts of Climate Change on the Built Environment under NEPA and State EIA Laws: A Survey of Current Practices and Recommendations for Model Protocols | 2015-11 | Jessica Wentz | Environmental Impact Assessment, NEPA, Publications | This paper outlines a set of model protocols for assessing the impacts of climate change on projects undergoing environmental reviews in accordance with NEPA and state equivalents. In addition, the paper describes: (i) the rationale for integrating climate impact considerations into environmental impact assessment (EIA) processes, (ii) the legal basis for requiring agencies to evaluate climate impacts during reviews conducted under NEPA and other EIA laws, (iii) a survey of existing guidelines for such evaluations, (iv) a survey of how climate change impacts are evaluated in recent federal EISs, and (v) a summary of outcomes from a stakeholder workshop convened to discuss the development of these protocols. This abridged version was published in Volume 45 of Environmental Law Reporter. | |
Access to Environmentally Sound Technology in the Developing World: A Proposed Alternative to Compulsory Licensing | 2009-12 | Neel Maitra | International and Foreign, Publications, Technology Transfer | This paper argues that compulsory licensing is not the best way to ensure access to environmentally sound technologies for the developing world, and suggests an alternative that may be more sensitive to the voluntary nature of global cooperation on climate change. | |
Act Locally, Reflect Globally: a Checklist of Options for U.S. Cities and States to Engage Internationally in Climate Action | 2017-5-24 | Susan Biniaz | International and Foreign, Publications, UNFCCC | U.S. cities and states are increasingly asking how they can play a more visible and active role in international climate change efforts. Cities and states have obvious incentives to take action to mitigate and adapt to climate change. But why engage internationally? They may seek to demonstrate leadership or gain appropriate recognition for "doing their part." They may want to inspire others to follow suit or support them in doing so, such as through exchanging best practices. They may seek to join the global march toward low-emission and resilient societies. Or they may want to show the world that U.S. action on climate should not be viewed exclusively through the federal lens, especially given the large percentage of U.S. emissions that are within the jurisdiction of cities and the more populous states. Between the Paris outcome itself and various platforms and processes developed both before and after Paris, U.S. cities and states have several options at their disposal for reflecting climate-related commitments and otherwise engaging internationally. It may also be desirable to strengthen these options and/or create new ones. | |
Addressing the Energy Efficiency Financing Challenge: The Role and Limitations of a Green Bank | 2009-12 | Christopher Angell | Energy, Energy Efficiency, Publications | This paper addresses 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. | |
An Analysis of Senator McConnell's Letter Urging States Not to Comply with EPA's Clean Power Plan | 2015-04 | Daniel Selmi | Clean Air Act, Energy, Publications, US Policy | 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. This essay analyzes legal statements made by Senator Mitchell in his letter. The essay points out that the letter erroneously describes both EPA's proposed regulations and the agency's legal authority under the Clean Air Act. It examines how the letter does not fully delineate the consequences that will occur if states follow the letter's advice and refuse to prepare plans that comply with the EPA regulations. Finally, the essay addresses claims in the letter regarding EPA's ability to take control of state energy policy. | |
Analysis of California, Washington, and New York Insurer Climate Risk Surveys for the 2011 Reporting Year | 2012-08 | Irene Shulman | Disclosures, New York, Publications | 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 poses some risk to company business, but most companies did not elaborate on those risks or provide detail on how they plan to cope with them. | |
Annual Review of Developments Under SEQRA | 2019-09-12 | Michael B. Gerrard and Edward McTiernan | New York, SEQRA | ||
Appliance and Equipment Efficiency Standards: A Roadmap for State and Local Action | 2017-07-20 | Peter Ross | Energy Efficiency, Green Building, Publications, US Policy | This working paper examines how the Energy Policy and Conversation Act ("EPCA"), and the DOE regulations promulgated thereunder, place limits on the ability of states and cities to outlaw the use of inefficient appliances and equipment. It surveys existing state efficiency laws that cover products beyond federal jurisdiction, and discusses several steps states can take to advance appliance and equipment efficiency including: (i) seeking EPCA waivers from DOE to create and enforce statewide standards for federally covered products (and, if necessary, litigating the rejection of any such waiver petition); (ii) regulating non-federally covered products such as computers; (iii) encouraging the use of more efficient appliances and equipment through local building codes for new construction; and (iv) revising procurement laws to require the use of products that exceed federal efficiency standards. | |
Assessing the Impacts of Climate Change on the Built Environment under NEPA and State EIA Laws: A Survey of Current Practices and Recommendations for Model Protocols | 2015-08 | Jessica Wentz | Environmental Impact Assessment, NEPA, Publications | This paper outlines a set of model protocols for assessing the impacts of climate change on projects undergoing environmental reviews in accordance with NEPA and state equivalents. In addition, the paper describes: (i) the rationale for integrating climate impact considerations into environmental impact assessment (EIA) processes, (ii) the legal basis for requiring agencies to evaluate climate impacts during reviews conducted under NEPA and other EIA laws, (iii) a survey of existing guidelines for such evaluations, (iv) a survey of how climate change impacts are evaluated in recent federal EISs, and (v) a summary of outcomes from a stakeholder workshop convened to discuss the development of these protocols. | |
Assisted Migration: A Viable Conservation Strategy to Preserve the Biodiversity of Threatened Island Nations? | 2011-05 | Jessica Wentz | Adaptation, Displacement and Migration, Natural Resources, Publications, Threatened Islands | ||
Authority of Pacific Island States to Regulate Greenhouse Gases from the International Shipping Sector | 2014-02 | Meredith Wilensky | International and Foreign, International Trade and Investment, Publications | This white paper assesses Pacific island states' legal authority under international law to regulate greenhouse gas emissions from the international shipping sector and considers what regulatory options are permissible within this legal framework. | |
Breaking the Cycle of "Flood-Rebuild-Repeat": Local and State Options to Improve Substantial Damage and Improvement Standards in the National Flood Insurance Program | 2019-01-22 | Dena Adler, Joel Scata | Adaptation, Disaster, Publications, US Policy | ||
Bundling Solutions for Financing Building Energy Efficiency Retrofit Projects in Residential and Commercial Buildings | 2012-06 | Michael Kerstetter | Energy, Energy Efficiency, Green Building, Publications | 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 for the development of such a program. | |
Cap-and-Trade Under The Clean Air Act?: Rethinking Section 115 | 2010-04 | Hannah Chang | Cap and Trade, Clean Air Act, Publications, US Policy | 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. | |
Carbon Capture and Storage Policy in China | Yan Gu | Energy, Fossil Fuels, International and Foreign, Publications | Given China's projected growth and its likely continued reliance on coal for the foreseeable future, CCUS may prove a critical strategy for controlling China's carbon emissions. This paper first collects government policies that impact or support CCUS technology research and project deployment. The paper also summarizes several existing laws that may prove relevant for the regulation of CCUS, in an effort to understand their potential applicability in regulating future CCUS activities. Finally, the paper examines several of the most prominent international collaborative efforts underway in China. | ||
Carbon Offshoring: the Legal and Regulatory Framework for Coal Exports | 2011-07 | Daniel Firger, Columbia Law Students | Energy, Fossil Fuels, Publications | This report examines the legal and regulatory framework for U.S. coal exports, focusing in particular on the significant improvements in railroad and port infrastructure that will be necessary in order to boost the volume of overseas coal shipments to the degree anticipated by recent industry projections. While existing railroads and ports have the capacity to handle current coal export volumes, much more infrastructure will be needed to meet surging foreign demand. A wide variety of new construction projects are under consideration to expand capacity and relieve congestion. These range from double-tracking existing Class I railroad rights of way to dredging harbors and installing a variety of new facilities to load, store, and ship coal from West Coast seaports. Because the phenomenon of large-scale U.S. coal exports is new, no comprehensive analysis has yet been undertaken to explore the federal, state and local laws applicable to each step in the process. It is our hope that this report will contribute to ongoing debates surrounding this important issue. | |
Carbon Pricing in New York ISO Markets | 2017-02-16 | Justin Gundlach, Romany Webb | Electric Sector, Energy, Fossil Fuels, Publications, Renewable Energy | Does the law permit the New York Independent Service Operator (NYISO) to incorporate, directly or indirectly, a carbon price into New York State's wholesale electricity market? And, if so, what is the appropriate design of a carbon pricing scheme for the NYISO market? For example, at what level should a carbon price be set and when/how should it be adjusted? How should the revenues generated by such a price be used? What impact (if any) will it have on the Regional Greenhouse Gas Initiative (RGGI) and New York's Clean Energy Standard? This working paper explores answers to those questions with due consideration for two contextual frames. The first is federal law, specifically the Federal Power Act, as interpreted by the Federal Energy Regulatory Commission (FERC) and the courts The second is New York's energy marketplace, meaning both the physical and economic arrangement of generation and transmission resources vis-à-vis load centers, and the state's ongoing efforts to reconfigure and decarbonize its portion of the electric grid by encouraging greater uses of information technology, energy efficiency, and distributed energy resources. Importantly, features of this second frame are both flexible and responsive to steps NYISO might take — as the New York Public Service Commission said in its Order adopting the Clean Energy Standard in August 2016, "the Zero Emissions Credit mechanism [established as part of the Clean Energy Standard] shall be such that it can be modified or eliminated by the Commission if there is a national, NYISO, or other program instituted that pays for or internalizes the value of the zero-emissions attributes." This paper is especially timely because NYISO's Integrating Public Policy Project (IPPP) has begun to "investigate potential market impacts from the implementation of the New York Clean Energy Standard, and determine whether other wholesale products or alternatives for incorporating the cost of carbon into the wholesale market could improve market efficiency and address potential market impacts." By exploring legal constraints and options, the authors intend to help inform that investigation's progress. | |
Cash for Clunky Appliances | Anna Fleder | Energy, Energy Efficiency, Publications | How viable is a "Cash for Appliances" (CfA) program that targets home appliances toward the goal of increasing energy efficiency and decreasing greenhouse gas 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. | ||
Cash-for-Clunkers Program: Better for Industry than Environment | 2009-07 | Michael Gerrard | Energy, Energy Efficiency, Publications, US Policy | This column will describe how the new program will work and what kinds of vehicles can be turned in and purchased under it. It will then assess how well the program, as enacted by Congress, meets its stated objectives. Published in Volume 242 of New York Law Journal. | |
Changement Climatique et Responsabilité | 2019-01-9 | articles by Michael B. Gerrard and Michael Burger in French journal, "Energie - Environnement - Infrastructures" | International and Foreign, Publications | ||
Changing International Law for a Changing Climate | 2018-10-22 | Daniel C. Esty and Dena P. Adler © 2018 American Society of International Law | International and Foreign, Publications, UNFCCC | ||
Changing the National Flood Insurance Program for a Changing Climate | 2019-04-01 | Dena Adler, Michael Burger, Rob Moore, Joel Scata. Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®. | Adaptation, Disaster, Disasters, Displacement and Migration, Publications, US Policy | ||
Climate Change Action Without Congress | 2013-03 | Michael Gerrard | Clean Air Act, Publications, US Policy | 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. Published in Volume 126 of Harvard Law Review Forum. | |
Climate Change and Environmental Impact Assessment | 2016 | Jessica Wentz | Environmental Impact Assessment, Publications | This chapter in "Decision Making in Environmental Law" summarizes some of the emerging standards and legal questions pertaining to the consideration of climate change in environmental impact assessment, using the National Environmental Policy Act as a case study. | |
Climate Change and Forced Displacement | 2014-12 | Jessica Wentz | Displacement and Migration, Human Rights, Publications | This note, written at the request of former Maldives president Mohamed Nasheed, calls on policy-makers to initiate a more concerted dialogue on how to prepare for and respond to displacement and migration caused by climate change. | |
Climate Change and Human Rights | 2015-12 | Michael Burger, Jessica Wentz | Human Rights, International and Foreign, Publications, UNFCCC | This report, commissioned by the United Nations Environment Programme (UNEP), describes the nexus between climate change, environmental degradation, and the impairment of fundamental human rights, such as the rights to food, water, housing, and life. It explains how governments and other actors can address climate change in a manner consistent with their obligations to respect, protect, promote and fulfill human rights. The report was released during COP21 to help inform the development of the Paris Agreement. | |
Climate Change and Human Trafficking After the Paris Climate Agreement | 2016-06 | Michael Gerrard | Displacement and Migration, Human Rights, International and Foreign, Publications, UNFCCC | Presented at Judges' Summit on Human Trafficking and Organized Crime Pontifical Academy of Social Sciences. | |
Climate Change and International Peace and Security: Possible Roles for the U.N. Security Council in Addressing Climate Change | 2015-07 | Dane Warren | International and Foreign, Publications | 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. The U.N. Charter and the literature suggest that the UNSC could theoretically take two possible actions related to climate change: (1) handle discrete, traditional conflicts partially or wholly caused by climate change; (2) find that climate change represents a "threat to international peace and security", placing the topic within the mandate of the Council, and employ its Chapter VI and VII powers to mitigate or adapt to climate change. This memorandum focuses primarily on the second, more controversial option, which could include the imposition of economic sanctions, the creation of a subsidiary climate change committee, and even the use of force. | |
Climate Change and Sustainable Development in Brazilian Law | 2016-03 | Gabriel Wedy | International and Foreign, Publications | This article describes Brazil's 2009 National Policy for Climate Change (NPCC) and explores how the principle of sustainable development provided for in the Brazilian Federal Constitution can be used to correct omissions and imperfections in the NPCC's application when NPCC provisions come before the Judiciary branch, the Executive branch and regulatory agencies. | |
Climate Change and the Environmental Impact Review Process | 2008 | Michael Gerrard | Environmental Impact Assessment, NEPA, New York, SEQRA | Published in Winter 2008 issue of NR&E. | |
Climate Change and the WTO: Expected Battlegrounds, Surprising Battles | 2011-07 | Daniel Firger, Michael Gerrard | International Trade and Investment, Publications | This article examines the issue of climate change policy and international trade law. While conventional wisdom may have predicted that conflicts in trade law would emerge through climate-related protectionist measures, such as carbon tariffs on imports from countries with less stringent controls on greenhouse gas emissions, the authors point out that government support for climate-friendly technologies has in fact emerged as the primary battleground. The authors examine two recent disputes—between the United States and China and between Japan and Canada—over green subsidies and their implications for the future of clean energy. Published in Volume 2011 of Daily Environment Reporter. | |
Climate Change Impacts on the Bulk Power System: Assessing Vulnerabilities and Planning for Resilience | 2018-02-20 | Justin Gundlach, Romany Webb | Adaptation, Electric Sector, Energy, Publications | ||
Climate Change in the Courts: An Assessment of Non-U.S. Climate Litigation | 2015-02 | Meredith Wilensky | International and Foreign, Publications | This paper analyzes 173 cases from the Sabin Center's Non-U.S. Climate Litigation chart, casting light on the "who, what, why, and how" of non-U.S. climate change litigation and investigating the role of the courts in the development of climate change policy outside of the United States. It represents the first comprehensive survey ever conducted of climate change litigaiton outside of the United States. It finds that there is far more climate litigation in the United States than in the rest of the world combined, and that the country with the second largest number of cases is Australia. The survey also finds that unlike the U.S., which has experienced substantial litigation intended to shape the development of climate regulations, non-U.S. climate-related cases have focused on specific projects and implementation of specific policies. | |
Climate Change Litigation After Supreme Court Ruling in American Electric Power v. Connecticut | 2011-07 | Mark Fulton, Michael Gerrard | Publications, US Litigation | The Supreme Court cut off the ability of private parties to ask federal judges to set their own emission standards for GHGs. It left the door slightly ajar for plaintiffs to ask judges to set such standards under state law theories, and conceivably to reward money damages, but the decision's strong language affirming that the EPA has special powers and technical expertise-and judges do not-regarding GHGs makes such claims a very long shot. On the other hand, the decision leaves undisturbed, and may strengthen, the ability of states and maybe citizens and companies to go to court to challenge any EPA failures to follow through on the dictates of the federal Clean Air Act in regulating GHGs. The decision also leaves basically untouched litigation against specific projects, whether they involve fossil fuels or renewables. Published by DB Climate Change Advisors. | |
Climate Change Securities Disclosures in Australia | 2014-03 | Amanda Liu | Disclosures, International and Foreign, Publications | This working paper reviews the disclosure laws for Australian-listed entities under Australian securities filings regulations and provides an analysis of what is being reported in practice for the 2013 reporting year in relation to the risks of climate change. The review finds a lack of comprehensive risk identification and discussion which links climate change risks to business strategy and financial performance. Many of the company annual reports which were considered contained only limited basic information on climate change risks, if any at all, rather than any substantive disclosure of the risks associated with climate change impacts and their materiality on operations, business strategy or financial performance. | |
Climate Change, FERC, and Natural Gas Pipelines: The Legal Basis for Considering Greenhouse Gas Emissions Under Section 7 of the Natural Gas Act | 2019-06-10 | Romany M. Webb | Energy, Fossil Fuels, Natural Gas, Publications | ||
Climate Engineering Research Governance | 2016-11 | Michael Burger, Justin Gundlach | Climate Engineering, Publications | The Chapter, forthcoming in Climate Engineering and the Law: Regulation and Liability for Solar Radiation Management and Carbon Dioxide Removal (Michael B. Gerrard & Tracy Hester, eds.), discusses the current state of climate engineering research governance and identifies key issues that any governance effort will need to address. | |
Climate Legislation and Litigation in Brazil | 2017-10-12 | Gabriel Wedy | Environmental Justice, International and Foreign, Land Use and Forestry, Publications | Brazil plays a major role in the global fight against climate change, especially because of its vast forests. However, the amount of deforestation now occurring is in great dispute. Between August 2014 and July 2015, for example, deforestation in the Amazon rainforest increased by 215% according to Imazon Research Institute. Contrarily, according to the Brazil Government, the increase was only 16%. This paper discusses the role that legislation and litigation are playing, and the roles they may and should play in the future, in combatting deforestation and other factors relevant to climate change in Brazil. | |
Climate Regulation Without Congressional Action | 2010-10 | Michael Gerrard | Publications, US Policy | For several years the proponents of climate regulation have pinned their hopes on Congress. Now that those hopes have been dashed for at least two more years, the principal action is shifting to the U.S. Environmental Protection Agency (EPA), the courts and the states, though important questions will still be faced by Congress. This column surveys what is likely to happen over the next two years. Published in Volume 244 of New York Law Journal. | |
Coal-Fired Powerplants Dominate Climate Change Litigation | 2009-09 | Michael Gerrard | Energy, Fossil Fuels, Publications, US Litigation | This column discusses the most recent legal developments concerning coal plants, including those on the regulatory and legislative fronts. Published in Volume 242 of New York Law Journal. | |
Colorado's Clean Air-Clean Jobs Act: Encouraging Conversion of Coal Plants to Natural Gas | 2010-10 | Jonathan Talamini | Clean Air Act, Energy, Fossil Fuels, Publications | 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 a potential model for other states. | |
Comma But Differentiated Responsibilities: Punctuation and 30 Other Ways Negotiators Have Resolved Issues in the International Climate Change Regime | 2016-06 | Susan Biniaz | International and Foreign, Publications, UNFCCC | International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries. Less well-known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have "resolved" an issue by sidestepping it and allowing Parties to preserve their positions. Some tools have enabled resolution by "splitting the difference" between opposing views. Still others have involved optical fixes, flexibility, or non-prejudice that helped one or more Parties go along with a particular outcome. This compendium of textual examples, presented in rough chronological order, is drawn from my personal involvement in international climate negotiations and is by no means exhaustive. It is hoped that the examples may be of interest to those who follow climate change in particular, as well as of potential use to those who work in other international fields. | |
Comment on Developing a Comprehensive Approach to Climate Change Mitigation Policy in the United States: Integrating Levels of Government and Economic Sectors | 2009-08 | Michael Gerrard | Publications, US Policy | The article by Thomas D. Peterson, Robert B. McKinstry Jr., and John C. Dernbach (PM&D) has two central insights: (1) Any serious national effort to control emissions of greenhouse gases (GHGs) must continue to leave important roles to the states; and (2) It would be a mistake to put too many eggs in the cap-and-trade basket. A portfolio approach that utilizes many different regulatory techniques is important. I certainly agree with PM&D about these insights, and they are correct that much of the current Congressional debate has given too little attention to these considerations. However, I have serious reservations about PM&D's proposal to use the mechanism of the national ambient air quality standards (NAAQS) and state implementation plans (SIPs) as the way to give states the vital roles they deserve. I believe there are alternative methods that would be superior. Published in Volume 39 of Environmental Law Reporter. | |
Compilation of International Authorities Supporting Specific Measures to Combat Climate Change | 2013-08 | Fiona Kinniburgh | International and Foreign, Publications | This document is a compilation of international authorities that endorse or require various specific measures to combat climate change. The document comprises a non-exhaustive compilation of extracts from various international agreements, environmental treaties and resolutions / declarations of international organizations, as well as reports from several respected international bodies. While the UNFCCC, the Kyoto Protocol and decisions of the Conference of the Parties contain the most authoritative and directly applicable obligations regarding climate change, other international conventions, declarations, agreements and charters also give legal support for some of these specific measures. | |
Consideration of Climate Change in Federal EISs, 2009-2011 | 2012-07 | Patrick Woolsey | Environmental Impact Assessment, NEPA, Publications | 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. | |
Considering the Effects of Climate Change on Natural Resources in Environmental Review and Planning Documents: Guidelines for Agencies and Practitioners | 2016-09 | Jessica Wentz | Adaptation, Environmental Impact Assessment, Land Use and Forestry, Natural Resources, NEPA, Publications, SEQRA | This report describes how climate change will affect natural resources in the United States, and explains why consideration of how climate change will affect those resources is necessary in order to fulfill legal requirements under NEPA and other statutes governing the management of these resources. It also presents examples of how climate change has been meaningfully accounted for in environmental review and planning documents. The accompanying protocol contains guidelines for considering the impacts of climate change in environmental reviews as well as other planning documents (e.g., resource management plans and resource assessments). | |
Court of Appeals Expands SEQRA Standing After an 18-Year Detour | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | Published in Volume 242 of New York Law Journal. | ||
Court Ruling Gives Green Light to EPA GHG Regulations -- Positive for Natural Gas, Renewables, and Efficient Vehicles | 2012-08 | Mark Fulton, Michael Gerrard | Fossil Fuels, Publications, Renewable Energy, US Policy | • On June 26, 2012, a panel from the US Court of Appeals for the District of Columbia Circuit unanimously upheld the US Environmental Protection Agency's (EPA) landmark greenhouse gas (GHG) regulations, keeping intact the EPA's authority to regulate carbon emissions from vehicle tailpipes and stationary sources. • The case is of great importance as it effectively clears the way for the EPA to proceed with its proposed rules to regulate CO2 emissions from both new power plants and from other new stationary sources, in addition to pressing ahead with new vehicle emission standards. • For vehicles, the EPA released the 'Tailpipe Rule' in April 2010 requiring automakers to improve fleet-wide fuel economy and reduce fleet-wide GHG emissions for the model years 2012-2016. It required fuel economy to improve by approximately 5 per cent per year. EPA and Department of Transportation (DOT), in cooperation with the California Air Resources Board (CARB), then developed a new CAFE standard for light vehicles to supersede the current fleet average 35.5 miles per gallon (mpg) standard by 2016. • For existing power plants, at present, the EPA has indicated that it does not plan to regulate GHGs emissions from established facilities, allowing states to continue to manage the permitting process under BACT. • For future plants, EPA has proposed a New Source Performance Standard (NSPS) which is based on the Best System of Emissions Reduction (BSER) and set equal to an efficient gas fired plant. It includes a proposal for a two-phased limit for future coal plants with a higher limit at first and a lower limit in the future based future availability of CCS. It also provides a transition period for planned coal plants that have already received permits and begin construction by spring 2013. • For investors in energy markets, the EPA's proposed GHG regulation provides reasonably high degrees of Transparency and Certainty as to its specific rules and their economic impact with respect to new plants and vehicles, although for existing plants, the outlook is not so clear. • When it comes to Longevity, the outcomes of the November elections are highly relevant, as are potential further court challenges. • DBCCA believes key winners at a sector level will be: Natural gas, renewable energy, efficient vehicles, and, if proven, carbon capture and storage (CCS). • It is noteworthy that no US court has found against climate science. Published by DB Climate Change Advisors. | |
Court Rulings Accept Climate Science | 2013-09 | Michael Gerrard | Climate Science, Publications, US Litigation | 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, and in one notable recent opinion a judge has gone so far as to suggest that those who accused a leading climate scientist of fraud may have acted with actual malice by making claims that are "provably false," potentially subjecting them to damages in libel. This column begins by discussing the several litigations involving one embattled climate scientist, and then describes how other courts have dealt with issues of climate science. Published in Volume 250 of New York Law Journal. | |
Critics Float Legal Theories To Challenge Pruitt's Science Advisor Policy | 2017-11-8 | Copyright 2017 Inside Washington Publishers. Reprinted with permission. | Publications, US Policy | ||
DC Circuit Clears Path for GHG Rules, But Politics Remain | 2012-11 | Michael Gerrard | Clean Air Act, Publications, US Policy | What may have been the most important environmental decision of 2012 dismissed numerous challenges to the rules issued by the U.S. Environmental Protection Agency (EPA) to control emissions of greenhouse gases (GHGs). While further legal battles are looming, the most serious remaining threats to EPA's program are in the political sphere. This article describes the ruling in Coalition for Responsible Regulation v. EPA [http://www.cadc.uscourts.gov/internet/opinions.nsf/52AC9DC9471D374685257A290052ACF6/$file/09-1322-1380690.pdf], forecasts EPA's next moves, and describes the battles still ahead for EPA. | |
Debate Over Environmental Rights and State Constitutional Convention | 2017-10-26 | Michael Gerrard and Edward McTiernan | New York, Publications | ||
Defining the Challenge in Implementing Climate Change Policy | 2010-06 | Michael Gerrard | Publications, US Policy | Published in Volume 40 of Environmental Law Reporter. | |
Deluge of New York City Laws Guards Against Flooding, Protects Environment | 2014-03 | Michael Gerrard | Adaptation, New York, Publications | The last year of Michael Bloomberg's 12-year term as mayor of New York City saw a remarkable and little-noticed deluge of new environmental laws. The City Council passed and the mayor signed more than 50 environmental bills. Over half of these laws were passed in the aftermath of Superstorm Sandy and focused on making infrastructure more resilient, improving emergency preparedness and response, and easing recovery for homeowners and businesses. In addition, laws were enacted concerning clean energy, improving energy and fuel efficiency, reducing emissions from vehicles, and strengthening the city's recycling laws. Published in Vol. 251 of New York Law Journal | |
Deploying Advanced Metering Infrastructure on the Natural Gas System: Regulatory Challenges and Opportunities | 2018-07-25 | Romany Webb | Energy, Energy Efficiency, Fossil Fuels, Natural Gas, Publications | ||
Designing a Climate Change Displacement Coordination Facility: Key Issues for COP 21 | 2015-09 | Jessica Wentz, Michael Burger | Displacement and Migration, Human Rights, International and Foreign, Publications, UNFCCC | There have been several proposals to include a "climate change displacement coordination facility" in the upcoming UNFCCC agreement, but there has been very little public discussion about what this facility would entail and how it would operate. This briefing note highlights some of the functions that the displacement coordination facility could fulfill, as well as some key questions for negotiators in the lead-up to COP 21 and subsequent talks. The note is not intended to be a proposal for how the facility should operate, nor do the functions highlighted below necessarily reflect what is politically or economically feasible. Rather, the note is intended to outline a broad array of considerations for decision-makers as they contemplate whether and how to proceed with the displacement coordination facility. | |
Determining Climate Responsibility: Government Liability for Hurricane Katrina? | 2019-01-02 | Teresa Chan, Michael Burger, Vincent Colatriano, John Echeverria. Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®. | Adaptation, Disasters, Environmental Justice, Publications, US Litigation | ||
Developing Municipal Wind Energy Ordinances in New York State | 2009-10 | Jason James | New York, Publications, Renewable Energy | 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. | |
Digest of Hydraulic Fracturing Cases | 2013-01 | Smita Walavalkar | Fossil Fuels, Publications, US Litigation | 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. | |
Discussion of Climate Change-Related Water Impacts in Federal Environmental Impact Statements (EISs), January-September 2012 | Cathy Li | Environmental Impact Assessment, NEPA, Publications | Climate change will affect important water resources in a vareity of ways. Environmental Impact Statements (EISs) prepared under the National Environmental Protection Act (NEPA) are a prominent venue for discussion of water, impact of federal actions on water resources, and potential impact of changes in water resources on human actions. This white paper and the accompanying database of 149 EISs, issued between January and September 2012, examines the treatment of water-related issues and details the extent to which federal agencies address topics related to water and climate change. | ||
Distributed Energy Resource Participation in Wholesale Markets: Lessons from the California ISO | 2018-05-04 | Justin Gundlach, Romany Webb. Copyright 2018 Energy Bar Association. Reprinted with permission. | Electric Sector, Publications | ||
Dodging the Nimby Bullet: A Solution To Waste Facility Siting | Michael Gerrard | Energy, Nuclear, Publications | Efforts to site new facilities for the disposal of hazardous waste (HW) and radioactive waste have met with utter paralysis. HW disposal companies have spent hundreds of millions of dollars trying to site new landfills and incinerators for this waste, but most of this money has gone down the drain. Since the enactment of the chief federal law on HW, the Resource Conservation and Recovery Act of 1976 (RCRA), only one new HW landfill has opened on a new site in the United States (in prophetically named Last Chance, CO) . Siting attempts for nuclear waste have been just as fruitless; except for one small facility in the Utah desert, no new radioactive waste disposal sites have opened since the late 1960s. This siting impasse is unnecessary. It results from a little noticed structural flaw in our system of environmental law, and from a misunderstanding of the psychology of communities faced with facilities they perceive as dangerous. Published in Public Utilities Fortnightly. | ||
Domestic Black Carbon Mitigation Under the Clean Air Act | 2010-08 | Hannah Chang | Clean Air Act, Fossil Fuels, Publications | Black carbon, a component of soot and particulate matter, competes closely with methane as the largest anthropogenic contributor to global warming after carbon dioxide. Regulation of black carbon has been identified by some as the "lowest hanging of the low-hanging fruit," an affordable, politically feasible, fast-action means to mitigate the warming temperatures caused by climate change. This paper brings a narrow focus to domestic mitigation by outlining how emissions are and can be controlled under the Clean Air Act and by identifying one way in which municipalities and states can contribute to mitigation. | |
Domestic Mitigation of Black Carbon from Diesel Emissions | 2011-02 | Hannah Chang | Clean Air Act, Fossil Fuels, Publications | Black carbon, a component of soot and particulate matter, competes closely with methane as the largest anthropogenic contributor to global warming after carbon dioxide. Regulation of black carbon has been identified as an affordable, politically feasible, fast-action means to mitigate the warming temperatures caused by climate change. With an emphasis on domestic mitigation, this Article examines how emissions are controlled under the CAA and what EPA, states, and municipalities can do to mitigate black carbon emissions further. | |
Downstream and Upstream Greenhouse Emissions: The Proper Scope of NEPA Review (pre-publication version) | 2016-03 | Michael Burger, Jessica Wentz | Environmental Impact Assessment, Fossil Fuels, Natural Resources, NEPA, Publications | Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (NEPA). The key question is whether and how agencies should account for emissions from activities that occur "downstream" from the proposed action, such the combustion of fossil fuels, and emissions from activities that occur "upstream" of the proposed action, such the extraction of fossil fuels. This Article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents. | |
Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review | 2017-05 | Michael Burger, Jessica Wentz | Energy, Environmental Impact Assessment, Fossil Fuels, NEPA, Publications, US Litigation, US Policy | Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (NEPA). The key question is whether and how agencies should account for emissions from activities that occur "downstream" from the proposed action, such the combustion of fossil fuels, and emissions from activities that occur "upstream" of the proposed action, such the extraction of fossil fuels. This Article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents. | |
Draft NEPA Guidance Requires Agencies to Consider Both GHG Emissions and the Impacts of Climate Change on Proposed Actions | 2015-04 | Jessica Wentz | Environmental Impact Assessment, NEPA, Publications | This article summarizes the history and key elements of the Council on Environmental Quality (CEQ)'s Revised Draft Guidance on the Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews. Published in Volume 26 of Environmental Law in New York. | |
Effect of the Paris Climate Agreement on U.S. Businesses | 2016-03 | Michael Gerrard, Edward McTiernan | Publications, UNFCCC | The Paris Agreement has significant legal and operational ramifications for many U.S. businesses. Those are the subject of this column. Published in Volume 255 of New York Law Journal. | |
Electricity Sector Adaptation to Heat Waves | 2015-01 | Sofia Aivalioti | Adaptation, Electric Sector, Energy, Publications | This white paper takes an up-close look at the impacts of extreme heat events on the electricity generation, transmission and distribution system and makes a series of recommendations for adaptive responses that can help states and localities avoid blackouts and brownouts and the risks to public health, public safety and local economies they pose. The recommendations include sweeping technological fixes and grid modernization, behavioral changes by utilities and end users alike, and managing the complexity of a multi-scalar, multi-sectoral problem through transparency and communication. The paper also provides comparative case studies of heat waves and adaptation responses in France, California, New York City and Australia. | |
Emergency Exemptions from Environmental Laws After Disasters | 2006-04 | Michael Gerrard | Adaptation, Publications | Many environmental statutes had their origins in disasters. And when disasters strike, the environmental laws come into play in the response. Some have urged Congress to adopt emergency exemptions so that the environmental laws do not interfere with rescue and recovery. This article explains how disasters helped create our current statutes, and then describes the role that environmental laws played in the immediate response to the September 11 attacks and Hurricane Katrina. It catalogs the multiple exemptions that already exist in the current environmental statutes and regulations and then summarizes the exemptions that were proposed after Hurricane Katrina. Published in Volume 20 of Natural Resources and Environment. | |
Encouraging Energy Efficiency through NEPA Comments | 2012-07 | Adam Riedel | Energy, Energy Efficiency, Environmental Impact Assessment, NEPA, Publications, US Policy | 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 discusses the statutory and regulatory basis underlying the consideration of energy efficiency and conservation in EISs and then tracks the EIS regulatory pathway, pointing out where and how energy efficiency comments can be injected into the NEPA process. The paper concludes with a discussion of the procedural course for bringing NEPA litigation. | |
Encouraging Energy Efficiency through the Clean Air Act | 2013-04 | Moneen Nasmith | Clean Air Act, Energy, Energy Efficiency, Publications, US Policy | This paper examines the ways that the Clean Air Act can be used to promote energy efficiency. It describes how advocates can participate in various actions under the CAA, as well as challenge final agency decisions that reflect insufficient consideration of the issue of energy efficiency and conservation. It includes discussion of the inclusion of energy efficiency in state implementation plans ("SIPs"), and opportunities for having energy efficiency considered in permitting decisions and technology-based standards. | |
Energy Efficiency | 2012 | Michael Gerrard | Energy, Energy Efficiency, Publications | Relatively simple measures, such as switching to more efficient lightbulbs and insulating commercial buildings, hold great promise in efforts to combat climate change. So what's the holdup? | |
Environmental and Energy Legislation in the 112th Congress | 2011-03 | Michael Gerrard | Energy, Publications, US Policy | Published in March/April 2011 Issue of Trends. | |
Environmental Commercial Law--Update on SEQRA Lawsuits for 1994 | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | Published in New York Law Journal. | ||
Environmental Impact Review in New York, | 1990 | Michael Gerrard, Daniel A. Ruzow, Philip Weinberg | Environmental Impact Assessment, New York, Publications, SEQRA | An all-encompassing guide to New York's State Environmental Quality Review Act (SEQRA) and the environmental impact review process that SEQRA generated. This unique publication takes project applicants, opponents, and regulators through every stage of the exacting compliance requirements and procedures of SEQRA and New York City's Environmental Quality Review (CEQR), as well as the electric power plant siting requirements of the Public Service Law. It discusses how to mesh SEQRA's requirements with those of other complex federal, state and local laws effectively and efficiently. | |
Environmental Law in New York | 1991 | Michael Gerrard | New York, Publications | Keep pace with developments in New York environmental statutes, regulations, court decisions, administrative rulings, and other environmental news with Environmental Law in New York. Each issue of this monthly newsletter keeps you fully up-to-date on legal developments in such critical areas as: • SEQRA/CEQR • Agency practice • Air quality • Water quality • Wetlands • Wildlife • Solid Waste • Pesticides • Noise • Lead • Asbestos • Land use • Mining • Historic preservation • Energy and Nuclear • Criminal • Toxic torts • Hazardous materials. with reports on decisions of New York state and federal courts, new statutes, new regulations of all state and New York City environmental agencies, as well as administrative rulings and guidance memoranda from the DEC! | |
Environmental Law Practice Guide: State and Federal Law | 1992 | Michael Gerrard | Publications, US Policy | Comprehensive coverage of the entire spectrum of federal and state environmental law. Everything you need all in one place! Provides practical guidance that cuts across all substantive areas of environmental law. Written for attorneys, consultants, regulators and facility managers by some of the foremost authorities in the country, this publication provides guidance through complex procedures and phases of environmental law practice, featuring state-by-state as well as subject-by-subject coverage. | |
Environmental Law: Time to Reboot | 2016-10 | James Gustave Speth | Environmental Justice, Publications, US Policy | Presentation given by James Gustave Speth at the 2016 David Sive Memorial Lecture. | |
Environmental Protection | 2013-03 | Daniel Firger, Michael Gerrard | International and Foreign, International Trade and Investment, Publications | Chapter within "Regulation of Foreign Direct Investment: Challenges to International Harmonization" (Zdenek Drabek & Petros C. Mavroidis, eds., 2013). The main aim of this book is to assess the importance of international rules for foreign direct investment and the major challenges to international harmonization of those rules. Particular attention is paid to the most controversial and contentious issues with the view of appraising the prospects for establishing global rules. The book is divided into three parts; the first part includes papers assessing the role of national and international legislation with further distinction being made between bilateral, regional and multilateral legal frameworks. The second part addresses regulatory issues of technology transfer, labor, environment, subsidies and investment incentives, national security, public services and sovereign wealth funds. The final part looks at the experience of some international fora in addressing these issues and at some theoretical and conceptual problems of rule harmonization. The papers have been written by legal and economic scholars from leading universities. | |
Envisioning Resilient Electrical Infrastructure: A Policy Framework for Incorporating Future Climate Change into Electricity Sector Planning | 2013-12 | Sam Nierop | Adaptation, Electric Sector, Energy, Publications | Climate change needs to be incorporated in future designs of the electricity sector. This paper argues for a policy framework in which utilities perform electrical climate change impact assessments that evaluate to what extent 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 regional circumstances, and many types of adaptation measures require governmental approval. An adapted version of this paper appeared in Environmental Science and Policy (May 2014). | |
EPA's Impending Greenhouse Gas Regulations: Digging through the Morass of Litigation | 2010-11 | Gregory Wannier | Clean Air Act, Publications, US Litigation, US Policy | 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 is able to address its greenhouse gas emissions. | |
Executive Summary: Legal Pathways to Reducing Greenhouse Gas Emissions under Section 115 of the Clean Air Act | 2016-01 | Michael Burger, Michael Gerrard et al. | Clean Air Act, Publications | This report—which reflects the collaborative efforts of scholars and lawyers at the Sabin Center for Climate Change Law at Columbia Law School, the Emmett Institute on Climate Change and the Environment at UCLA School of Law, the Institute for Policy Integrity at NYU School of Law, and the Center on Global Energy Policy at Columbia SIPA—contains a careful legal analysis of the potential for reducing GHG emissions under Section 115 of the Clean Air Act. The analysis demonstrates that Section 115 provides the authority and flexibility necessary to design a climate change program that maximizes efficacy and efficiency for state and federal regulators, regulated businesses, and, ultimately, the public at large. The analysis and conclusions have been endorsed by a group of the nation's leading experts on climate change and environmental law. | |
Federal Executive Actions to Combat Climate Change | 2013-03 | Michael Gerrard | Clean Air Act, Environmental Impact Assessment, NEPA, Publications, US Policy | In the current partisan atmosphere in Washington, there appears to be almost no chance that this Congress will take significant action on climate change. What, then, are the executive actions that the Obama administration can take with its existing legislative authority? There are quite a few, it turns out. This column will discuss the most significant ones. Published in Volume 249 of New York Law Journal. | |
Federal Implementation Plans and the Path to Clean Power | 2016 | Daniel Selmi | Clean Air Act, Electric Sector, Energy, Energy Efficiency, Publications, Renewable Energy, US Policy | This article examines issues related to the promulgation of a federal implementation plan (FIP) under the Clean Power Plan. It first considers the Environmental Protection Agency (EPA)'s past use of FIPs. Contrary to accepted belief, EPA has imposed FIPs on numerous occasions and its use of them has greatly evolved. The Article analyzes this evolution and finds that FIPs have altered the "cooperative federalism" structure of the Clean Air Act in important ways. The use of FIPs has centralized more power at the federal level, afforded EPA considerable experience in designing and administering market-trading systems, altered the state-centered political geography of the Clean Air Act, and created new compliance incentives for states and regulated industries. The Article then employs these conclusions as a lens through which to examine EPA's proposed FIP for the CPP. It finds that the proposed FIP derives logically from EPA's prior work on FIPs. However, the Article concludes that the structure and complexities of the Clean Power Plan raise a series of issues for the proposed FIP that will require difficult tradeoffs involving competing regulatory goals. | |
Federal Implementation Plans for Controlling Carbon Emissions from Existing Power Plants: A Primer Exploring the Issues | 2015-05 | Daniel Selmi | Clean Air Act, Energy, Publications, US Policy | This paper answers basic questions about EPA's authority to issue federal implementation plans (FIPs) for the Clean Power Plan regulations that EPA is issuing under Section 111(d) of the Clean Air Act. The essay is organized into three parts: (1) the circumstances under which EPA will promulgate a FIP under Section 111; (2) the content and effect of such a FIP; and (3) the enforcement of a FIP. The discussion is written in an accessible, plain language style that will be understandable to both lawyers and non-lawyers. | |
Federal Regulatory Barriers to Grid-Deployed Energy Storage | Andrew H. Meyer | Electric Sector, Energy, Publications, Renewable Energy, US Policy | New energy storage technologies have the potential to fundamentally alter the operation of our electricity system. The emergence of new technologies is matched by an emergence of federal and state regulations, but federal regulations threaten to undermine the successful deployment of storage on the grid. The Federal Energy Regulatory Commission (FERC) regulates the rates, terms, and conditions of interstate transmission and interstate wholesale energy transactions. This article discusses FERC regulations of storage and proposes a way forward for improved regulation. | ||
Federalism Obstacles To Advancing Renewable Energy | 2014-05 | Michael Gerrard | Energy, Publications, Renewable Energy, US Policy | This article discusses several recent judicial decisions and pending cases that lie at the perilous intersection of renewable energy and the limitations on state power. Published in Volume 251 of New York Law Journal. | |
Feeding Climate Change: Federal Food Procurement and Its Effects on Global Warming | 2009-12 | Amanda Hungerford | Agriculture, Publications, US Policy | 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. | |
FERC Order 1000 as a New Tool for Promoting Energy Efficiency and Demand Response | 2012-11 | Shelley Welton, Michael Gerrard | Energy, Energy Efficiency, Publications, US Policy | Order 1000 has been widely touted for its potential to help update our national transmission grid to meet the increasing demand for new transmission created by policies promoting renewable energy. Less remarked upon is the role that Order 1000 could play in ensuring more thoughtful consideration during regional transmission planning of how energy efficiency and demand response policies—critical demand reduction strategies—affect the need for new transmission. This Article describes some of Order 1000's key planning reforms, discusses how the order can facilitate consideration of these demand-side policies, and offers suggestions on the ways that regional transmission planners might use Order 1000 as an opportunity to update transmission planning to better match our nation's evolving priorities for the electricity grid. Published in Volume 42 of Environmental Law Reporter. | |
Financial Disclosure of Risks Related to Global Climate Change | 2008-03 | Michael Gerrard, Christopher Anderson | Disclosures, Publications | Securities and Exchange Commission (SEC) require publicly traded companies to disclose material impacts of environmental laws on their business. Increasing attention is being paid to the issue of securities disclosure of financial risks and opportunities posed by impending regulations relating to global climate change and by climate change itself. Published in April/May 2008 issue of Trends. | |
Flag State Regulation of Greenhouse Gas Emissions | 2014-11 | Alyssa Kutner, Meredith Wilensky | International and Foreign, Publications | This white paper delves into the issue of flag state authority to regulate greenhouse gas emissions, particularly with respect to franchised registries and flags of convenience. | |
Forced Migration After Paris COP21: Evaluating the "Climate Change Displacement Coordination Facility" | 2017-01 | Phillip Dane Warren | Adaptation, Displacement and Migration, International and Foreign, Publications, Threatened Islands, UNFCCC | Climate change represents, perhaps, the greatest challenge of the twenty-first century. As temperatures and sea levels rise, governments around the world will face massive and unprecedented human displacement that international law currently has no mechanism to address. While estimates vary, the scope of the migration crisis that the world will face in the coming decades is startling. In addition to losing their homes, climate change migrants, under current law, will encounter a refugee system governed by a decades-old Refugee Convention that offers neither protection nor the right to resettle in a more habitable place. Armed with the most recent developments in international climate change law following the December 2015 Paris climate conference (COP21), this Note considers which of the existing bodies in the United Nations is best equipped to address forced migration caused by climate change. Inspired by the negotiations leading up to the Paris Conference, this Note advocates for a Climate Change Displacement Coordination Facility, housed within the United Nations Framework Convention on Climate Change (UNFCCC), to protect the rights of displaced persons. Finally, this Note maps out an institutional architecture and a long-term vision for a Displacement Coordination Facility. As opposed to an amendment of the 1951 Refugee Convention or a new rights-based treaty for climate migration, a Facility housed within the UNFCCC provides the greatest possible flexibility, autonomy, and cultural retention for climate change migrants while still protecting their essential human rights. | |
Geological storage of CO2 in sub-seafloor basalt: the CarbonSAFE pre-feasibility study offshore Washington State and British Columbia | 2018-07 | Michael Gerrard, Romany Webb, et al. Copyright 2018 Elsevier Ltd. | Carbon Capture and Storage, Climate Engineering, Fossil Fuels, Publications | ||
Global Climate Change and U.S. Law, Second Edition | 2014 | Michael Gerrard | A vast body of U.S. law relevant to climate change has developed since publication of the first edition of Global Climate Change and U.S. Law in 2007, even while Congress has failed to pass a new comprehensive statute to address the climate challenge. This domestic legal regime, covered comprehensively in this updated volume, consists of federal greenhouse gas regulations issued under the Clean Air Act and federal energy efficiency statutes, new disclosure requirements imposed under the securities laws, as well as a variety of state and local initiatives and common law decisions by the courts. Recognizing that climate change is largely an energy problem, this edition adds a completely new section on energy regulation. Additional chapters now cover cap-and-trade regimes, climate-related water issues, agriculture and forestry, and the use of non-climate international agreements to reduce emissions and address climate impacts. The final new section focuses on issues previously seen as marginal but now of growing importance: climate adaptation, carbon capture and sequestration and geoengineering. Chapters are organized in five parts: Part I: Overview and Context Part II U.S. Federal Regulation and Litigation Part III: Regional, State, and Local Actions Part IV: Energy Regulation Part V: The Next Legal Frontiers Published by ABA Book Publishing. | ||
Governmental and Private Liability for Flooding | 2011-11 | Michael Gerrard | Adaptation, Publications | In recent years the frequency and severity of heavy precipitation and floods in parts of the United States, including the Northeast, have been increasing to a statistically significant degree, and this trend is expected to worsen. Events such as last August's Hurricane Irene have caused widespread loss of life and property damage. This article summarizes some of the liability issues that result from floods, and efforts to control them. Published in Volume 246 of New York Law Journal. | |
Greenhouse Gas Disclosure Requirements Are Proliferating | 2010-04 | Michael Gerrard | Disclosures, Publications | 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. Published in Volume 243 of New York Law Journal. | |
Greenhouse Gases: Emerging Standards for Impact Review | 2009-03 | Michael Gerrard | Environmental Impact Assessment, NEPA, Publications | This column surveys the emergence of these new guidelines, which is occurring against a backdrop of accelerated activity in both Congress and the U.S. Environmental Protection Agency (EPA), with the vigorous support of President Barack Obama, leading toward federal regulation of GHGs. The world community is also preparing for the 15th Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) to be held in November-December 2009 in Copenhagen, Denmark, to devise a successor to the Kyoto Protocol. Published in Volume 241 of New York Law Journal. | |
Harmonizing Climate Change Policy and International Investment Law | 2011-06 | Daniel Firger, Michael Gerrard | International and Foreign, International Trade and Investment, Publications | This chapter responds to a chorus of commentary about the potential for conflict between the international investment law regime and an array of national and international actions being undertaken to mitigate and adapt to global climate change. Contrary to conventional wisdom, while some climate-friendly regulations may indeed be facially incompatible with the obligations imposed on states by typical international investment agreements (IIAs), many climate policies – especially those related to clean energy finance and technology transfer – involve principles common to foreign investment law and are largely compatible with that regime. Moreover, pending the unlikely negotiation of a single global agreement on climate change, states are initiating a host of national, bilateral and regional initiatives to encourage certain kinds of foreign direct investment (FDI) flows in the hope of catalyzing low-carbon growth. These sorts of strategies will benefit from a flexible and responsive set of rules governing climate-friendly FDI, something the international investment law regime is uniquely positioned to provide. Meanwhile, international investment law is itself undergoing a transformation of sorts, as more serious consideration is given to the environmental and social impacts of foreign investment and as global capital flows become increasingly multidirectional, calling into question longstanding distinctions between FDI host countries and the home countries of investors. Rather than signaling conflict, recent trends in climate change policy and international investment law indicate that both regimes may be entering a new phase characterized by coordination, harmonization, and mutual learning. This chapter maps this emerging territory and identifies key opportunities to shape the interaction between the two disciplines. Published in Yearbook on International Investment Law & Policy 2010-2011. | |
Heat in US Prisons and Jails: Corrections and the Challenge of Climate Change | 2015-08 | Daniel Holt | Adaptation, Human Rights, Publications | 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? | |
Holding Fossil Fuel Companies Accountable for their Contribution to Climate Change: Where Does the Law Stand? | 2018-11-01 | Michael Burger, Jessica Wentz | Climate Science, Environmental Justice, Fossil Fuels, Publications, US Litigation | ||
How Did Federal Environmental Impact Statements Address Climate Change in 2016? | 2017-02 | Saloni Jain, Omri Klagsbald, Giovanna Leigh Crozier-Fitzgerald, Taylor Quinn and Elana Sulakshana | Environmental Impact Assessment, NEPA, Publications | This paper, written by team of students as part of the Columbia University Capstone Workshop on Sustainable Development, surveys how federal environmental impact statements published in the fall of 2016 were implementing the Council on Environmental Quality's guidance on how to account for climate change in NEPA reviews. | |
How Lawyers Can Help Save The Planet | 2019-5-21 | Michael Gerrard and John Dernbach | Legal Pathways to Deep Decarbonization, Publications | Scientific reports, coming in a steady stream, are highlighting the urgency of reducing greenhouse gas emissions so as to avoid the worst impacts of climate change. Already, hurricanes, coastal and inland flooding, wildfires, heat waves and other extreme weather events are causing severe economic damage and loss of life, and their increasing severity has been attributed to climate change. The decades to come promise to be even worse. Engineers, economists and others have long been proposing ways to cut back on emissions and thereby prevent an excessive rise in global temperatures. However, some of these methods have faced legal obstacles, and others have not enjoyed sufficient incentives. Now we are making a legal toolkit available with more than 1,000 specific recommendations for actions at the federal, state and local levels and in the private sector that could help advance the technical tools already available. Many lawyers are needed to help these recommendations become reality. As discussed below, we are setting up a system for lawyers to volunteer to undertake this work. | |
How Much Does the Existing Regulatory Patchwork Reduce Greenhouse Gas Emissions? | 2015-11 | Justin Gundlach | Cap and Trade, Clean Air Act, Publications, Renewable Energy, US Policy | ||
How SEQRA Cases Fared in 1998 | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | In the annals of the State Environmental Quality Review Act (SEQRA), 1998 should be remembered as the year when developers throughout New York State became frustrated with what they perceived as irrational requirements or excessive delays in the SEQRA process, went to court for redress, and almost uniformly lost. There were 18 attempts at such relief and one highly mixed success. Published in the New York Law Journal. | ||
Human Rights and Article 6 of the Paris Agreement: Ensuring Adequate Protection of Human Rights in the SDM and ITMO Frameworks | 2018-05-01 | Romany Webb, Jessica Wentz | Human Rights, International and Foreign, Publications, UNFCCC | ||
Human Rights and the Environment: Legality, Indivisibility, Dignity and Geography | 2019-5-22 | Chapter 14, by Michael Burger and Jessica Wentz (Elgar Encyclopedia of Environmental Law series) | Human Rights, Publications | Much has been written, discussed, advocated and litigated about human rights and the environment over the last two decades. This comprehensive volume of the Elgar Encyclopedia of Environmental Law offers fresh perspectives to the conversation by focusing on four subjects that shed new light on the subject of environmental human rights: the challenges of identifying the fundamental legal sources for the protection of human rights and the environment, the recognition of the indivisibility of human rights and environmental law, the centrality of the right to human dignity as the lodestar of human rights law, and the uniqueness of geographic particularities. | |
Hurricane Katrina Decision Highlights Liability for Decaying Infrastructure | 2012-05 | Michael Gerrard | Adaptation, Publications | 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 limited extent, protect themselves from this liability. Published in Volume 247 of New York Law Journal. | |
Hydraulic Fracturing Litigation Digest | 2013-01 | Smita Walavalkar | Energy, Fossil Fuels, Publications, US Litigation | The Hydraulic Fracturing Litigation Digest summarizes court decisions, plaintiffs complaints, and the most recent developments in hydraulic fracturing litigation brought in the United States. | |
I Beg to Differ: Taking Account of National Circumstances under the Paris Agreement, the ICAO Market-Based Measure, and the Montreal Protocol's HFC Amendment | 2017-01 | Susan Biniaz | International and Foreign, Publications, UNFCCC | This paper explores the different ways in which negotiators to three recent environmental instruments accounted for different national circumstances in formulating commitments and other aspects of cooperation in the instruments. The author finds that the negotiators of these instruments have significantly expanded the arsenal of differentiation tools based on considerations pertaining to logic, fairness, limited capacity, and negotiating leverage. | |
In the year 2049: What Will Environmental Protection Be like 40 Years from Now? | 2009-11 | Michael Gerrard | Adaptation, Publications | Published in Volume 26 of The Environmental Forum. | |
Increasing Energy Efficiency: Legal Techniques and Impediments | 2011-01 | Michael Gerrard | Energy, Energy Efficiency | In view of the recent election, there appear to be no immediate prospects for comprehensive climate and energy legislation in the United States. However, an abundance of legal techniques are available at the federal, state and municipal levels that cumulatively could accomplish a great deal in cutting energy use, lowering U.S. reliance on foreign oil, and reducing GHG emissions and the other adverse environmental impacts of energy production. Published in Volume 245 of New York Law Journal. | |
Increasing Gasoline Octane Levels to Reduce Vehicle Emissions | 2017-01-17 | Romany Webb | Clean Air Act, Publications, Transportation | This paper explores the potential for federal and/or state regulation of gasoline octane levels. At the federal level EPA is authorized to regulate the components and/or characteristics of gasoline under section 211 of the Clean Air Act. Pursuant to that section, EPA may regulate octane if evidence before it demonstrates that switching to high octane gasoline is necessary to achieve vehicle carbon dioxide emissions standards (i.e., adopted under section 202 of the Clean Air Act) or would significantly reduce the costs of achieving those standards. If EPA promulgates regulations, or publishes a finding that regulation is unnecessary, state regulatory action will be pre-empted. There is, however, an exception for California which may adopt its own regulations regardless of any action by EPA. Regulations adopted by California are not subject to review and/or approval by EPA. The regulations only apply in California and cannot be adopted by other states, in preference to federal regulations, as is permitted with respect to vehicle emission standards. | |
Increasing Use of Renewable Energy: Legal Techniques and Impediments | Michael Gerrard | Energy, Publications, Renewable Energy | Increasing the share of non-fossil energy involves a switch from the fuels that took tens of millions of years to form under the ground, to sources that are constantly renewed. These renewable energy sources (with the exception of geothermal) derive from the constant influx of solar energy, and (with the exception of certain uses of biofuels) they emit little by way of GHGs and other air pollutants, require no imports, and are inexhaustible. Several legal techniques have been developed to increase the use of renewable energy. Published in Volume 245 of New York Law Journal. | ||
Integrating Climate Change Resilience Into HUD's Disaster Recovery Program | 2016-04 | Justin Gundlach, Channing Jones | Adaptation, Displacement and Migration, Publications | The Department of Housing and Urban Development (HUD)'s community development block grant disaster recovery program (CDBG-DR) can better and more clearly incorporate climate resilience and adaptation priorities. This article identifies and analyzes the statutes that have guided HUD's approach to disaster recovery to date, as well as forms of "soft guidance" issued by HUD for use by various stakeholders, including both HUD CDBG-DR program officers and the state and local officials that interact with them. Comparing these materials reveals a tension between the requirement that all projects funded by CDBG-DR "tie back" to the most recent disaster, and the logic of resilience, which holds that one should always build or rebuild with an eye to the next disaster. The article notes some signs that HUD is working to reconcile this tension and suggests ways for HUD to carry potential forms of reconciliation forward into future disaster recovery contexts. Published in Volume 46 of Environmental Law Reporter. | |
International Executive Agreements on Climate Change | 2009-11 | Hannah Chang | International and Foreign, Publications | The President's independent power to enter into internationally binding commitments related to climate change is 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. | |
Join the Parties: 25+ Ways to Promote Participation in Multilateral Environmental Agreements | 2018-03-08 | Susan Biniaz | International and Foreign, Publications | ||
Kyoto's Clean Development Mechanism in Action | 2007-09 | Michael Gerrard, Siddharth Sethy, Hui Xu, Bruno Gagliardi | Climate Finance, International and Foreign, International Trade and Investment, UNFCCC | India, China and Brazil have all embraced the CDM. These countries are all working to expand their capacity to develop CDM projects, and their Designated National Authorities are all approving large numbers of projects and registering them with the CDM Executive Board so that countries around the world can help fund them and gain emissions credits. The untapped potential for projects in all three countries is enormous. If the United States ratifies the Protocol, or whatever succeeds it, U.S. companies are likely to become major participants in these global efforts. Meanwhile, they can participate as investors, traders and service providers, but for the most part they are watching from the sidelines. Published in New York Law Journal. | |
La Victoria de Urgenda: El Inicio de la Lucha Judicial Frente Al Cambio Climatico | 2016-06 | Teresa Parejo-Navajas | International and Foreign, Publications | The ruling of The Hague District Court of June 2015 forces the Dutch government to implement a more ambitious mitigation policy in order to comply with its duty of care. This unexpected and brave decision represents, despite some of its flaws, an enormous progress in the fights against climate change. | |
Legal Implications for the U.S. in Transferring CCS Technology to China | 2011 | Amy Ward | International and Foreign, Publications, Technology Transfer | This paper addresses the legal and related political and economic implications for U.S. public and private sector investors, and U.S. CCS technological proprietors, in participating in CCS demonstration projects in China through the provision of investment and technology transfers. | |
Legal Issues in Integrated, Multi-Pollutant Planning for Energy and Air Quality | 2013-09 | Shawna Ganley, Shelley Welton | Clean Air Act, Energy, Publications | This white paper summarizes our research into the permissibility of states pursuing an integrated, multi-pollutant, flexible approach to air quality planning. The paper first addresses threshold issues: state authority under the Clean Air Act to voluntarily implement integrated planning and the permissibility of using a multi-pollutant approach to air quality planning. It then examines two key issues concerning emerging control measures: how states can use energy efficiency and renewable energy (EERE) programs in their State Implementation Plans (SIPs) and to what extent states may allow novel measures to satisfy the Act's source-specific control technology requirements. | |
Legal Issues in Regulating Imports in State and Regional Cap and Trade Programs | 2012-10 | Erin Parlar, Michael Babakitis, Shelley Welton | Cap and Trade, Publications | 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; and (2) whether such regulations are preempted by the Federal Power Act (FPA). | |
Legal Pathways for a Massive Increase in Utility-Scale Renewable Generation Capacity | 2017-06-29 | Michael B. Gerrard | Fossil Fuels, NEPA, Publications, Renewable Energy | Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (ELI Press forthcoming 2018), discusses the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act; state and local approvals; and species protection laws. It also presents recommendations for lowering the obstacles and briefly discusses several corollary actions that are needed. | |
Legal Pathways to Reducing Greenhouse Gas Emissions under Section 115 of the Clean Air Act | 2016-01 | Michael Burger, Michael Gerrard et al. | Clean Air Act, Publications | This report—which reflects the collaborative efforts of scholars and lawyers at the Sabin Center for Climate Change Law at Columbia Law School, the Emmett Institute on Climate Change and the Environment at UCLA School of Law, the Institute for Policy Integrity at NYU School of Law, and the Center on Global Energy Policy at Columbia SIPA—contains a careful legal analysis of the potential for reducing GHG emissions under Section 115 of the Clean Air Act. The analysis demonstrates that Section 115 provides the authority and flexibility necessary to design a climate change program that maximizes efficacy and efficiency for state and federal regulators, regulated businesses, and, ultimately, the public at large. The analysis and conclusions have been endorsed by a group of the nation's leading experts on climate change and environmental law. Reprinted in Volume 26 Georgetown Environmental Law Review (2016-06). | |
Legal Pathways to Reducing Greenhouse Gas Emissions under Section 115 of the Clean Air Act | 2016-06 | Michael Burger, Michael Gerrard, and others | Clean Air Act, Publications, US Policy | Under President Barack Obama, the U.S. Environmental Protection Agency ("EPA") has promulgated a series of greenhouse gas ("GHG") emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This article argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country's climate change goals: section 115 of the Clean Air Act, titled "International Air Pollution." This provision authorizes EPA to require states to address emissions that contribute to air pollution endangering public health or welfare in other countries, if the other countries provide the United States with reciprocal protections. The language of section 115 does not limit the Agency to regulating a particular source-type, or a given industrial or economic sector. Rather, it grants EPA and the states broad latitude to address international air pollution comprehensively through the Clean Air Act's state implementation plan process, increasing administrative efficiency and reducing burdens on regulated companies. EPA and the states could use the provision to establish an economy-wide, market-based approach for reducing GHG emissions. Such a program would provide one of the most effective and efficient means for addressing climate change pollution in the United States. | |
Legal Tools for Cities to Cope with Extreme Heat | 2018-11-9 | Michael B. Gerrard and Edward McTiernan | New York, Publications | ||
Legal Tools for Climate Adaptation Advocacy: Flood Insurance | Matt Sienkiewicz | Adaptation, Publications | 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 | 2015-03 | Jennifer Klein, Ethan Strell | Adaptation, Environmental Impact Assessment, NEPA, Publications | This paper discusses the legal authority for using NEPA and similar state laws to address climate change adaptation and explains how citizens can use these laws to encourage agencies and applicants to consider climate change impacts – both those caused by and those affecting a proposed project. | |
Legal Tools for Climate Adaptation Advocacy: Securities Law | 2015-05 | Nina Hart | Adaptation, Disclosures, Publications | This paper explains how citizens and governments can use securities laws to encourage companies to consider climate change impacts and implement measures to adapt to climate change. | |
Legal Tools For Climate Adaptation Advocacy: The Electric Grid and Its Regulators--FERC and State Public Utility Commissions | 2016-09 | Payal Nanavati, Justin Gundlach | Adaptation, Electric Sector, Energy, Publications | This chapter is written for advocates seeking a more thorough integration of adaptation considerations into regulation of the electric grid. Part 1 describes the grid, its regulators, and their functions. Part 2 highlights impacts of climate change that are expected to impair grid operations: increased temperatures and heat waves, changes in precipitation, storms, and sea-level rise. Part 3 discusses substantive proposals to adapt to climate change impacts. Part 4 summarizes the basic regulatory proceedings and identifies opportunities for an advocate to present evidence and arguments during such proceedings. | |
Litigation Under SEQRA Declining, Exemption Use is Rising | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA, US Litigation | Published in Volume 244 of New York Law Journal. | ||
Livestock and Climate Change - Annotated Bibliography | 2012-07 | Julia Christian, Andrew Kirchner, Derek Nelson and Jessica Wentz | Agriculture, Publications | 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. | |
Local Law Provisions for Climate Change Adaptation | 2016-05 | Justin Gundlach, Dane Warren | Adaptation, Publications | In September 2014, New York enacted the Community Risk and Resiliency Act (CRRA), which requires in part that the New York Department of State (DOS) and the Department of Environmental Conservation (DEC) create model local laws relating to climate change adaptation for use by local governments. In an effort to assist the State with drafting model local laws for adaptation; to encourage the State to incorporate a broad range of adaptation strategies, including retreat from areas of high flood risk; and to assist local governments with implementation of these programs. The Sabin Center for Climate Change Law has assembled existing and suggested local law provisions that reflect diverse approaches to adaptation to climate-enhanced flood risk. While many of the approaches reflected in this paper deal with coastal local laws, local governments could adopt similar strategies and language in riverine floodplains. This document is not a single, comprehensive "model local law" that a local government might adopt in full. Rather, it is a collection of useful statutory options—one that takes note of local law provisions enacted by local governments in New York State, as well as relevant state laws enacted in New York and other jurisdictions. Where different local governments have used similar statutory language, this paper only includes one version. Throughout, citations to particular laws and regulations are hyperlinked for ease of access. The paper is organized into three sections: Permitting Review, Targeted Development Restrictions and Prudent Development, and Protection/Armoring. Those sections follow a brief description of model legislative language that relates to sea level rise. | |
Managed Coastal Retreat: A Legal Handbook on Shifting Development Away from Vulnerable Areas | 2013-10 | Anne Siders | Adaptation, Displacement and Migration, Land Use and Forestry, New York, Publications, Threatened Islands | This report compiles and examines case studies from across the United States where communities have already implemented managed retreat to protect against future disasters. By cataloging potential tools and illustrating the practical situations in which managed retreat has been used, this handbook hopes to provide policy makers with better information on the pros and cons of managed retreat. | |
McCain vs. Obama on Environment, Energy, and Resources | 2008 | Michael Gerrard | Publications, US Policy | For the first time in living memory, the environment is receiving significant attention in a presidential election. Both Senator John McCain (R-AZ) and Senator Barack Obama (D-IL) have given speeches and run television advertisements on the issue and (after a slow start) are being asked questions by the national press about where they stand on climate change and energy. This article compares the actions and positions of the two candidates on environmental, energy, and resources issues. It begins by looking at their voting records, presents their endorsements and campaign contributions, and then discusses their positions as shown in their campaign position papers, speeches, responses to voter questionnaires, and similar sources. The intent here is to provide an objective comparison without evaluating the merits of the stances taken. Published in Volume 23 of Natural Resources & Environment | |
McCain/Palin vs. Obama/Biden on the Environment | 2008-09 | Michael Gerrard | Publications, US Policy | The presidential candidates of both major parties have spent a great deal of time talking about energy policy and almost as much addressing environmental issues. Their positions differ more in emphasis than in fundamentals. On the other hand, the vice-presidential candidates present stark contrasts. Vice presidents Al Gore and Dick Cheney certainly had central roles in shaping environmental policies and any examination of the likely actions of the team that will move into the White House in January should look closely at the bottom as well as the top of the tickets. Published in New York Law Journal. | |
Measurement, Reporting & Verification of Chinese Mitigation Commitments | 2011 | Qiuyan Zhao | International and Foreign, Publications | This paper discusses China's new transparency pledge—MRV as it relates to Chinese mitigation commitments and seeks to answer several questions pertinent to the progress and challenges of China's MRV regime: Are China's GHGs emissions measured continuously? Are there review mechanisms to ensure quality control of the data and analyses? What information is made available to the public? This paper thus highlights how China can craft a feasible regulatory framework on MRV systems: The first and the most important measure is consideration of MRV in the 12th Five-year Plan (2011-2015). Secondly, China needs to expand legislative efforts and to improve the system of responsibility for law enforcement to address MRV. Finally, to further impel development and perfection of MRV system with Chinese characteristics, referring to the advanced experience of other countries in legislation and enhancing international cooperation is also crucial. | |
Memorandum on China's Measures for Addressing Sea Level Change | 2011-06 | Zhang Zhongmin | Adaptation, International and Foreign, Publications | This paper describes the current state of China's recognition of sea level rise in the context of global climate change. The author analyzes official state documents addressing sea level rise, including the annual China Sea Level Communiqué, and compares them with local government initiatives and perspectives from non-governmental sources such as academia, NGOs and the general public. The paper concludes that, while China has taken many commendable steps towards addressing sea level rise, there are still considerable obstacles to be overcome. Finally, the author recommends that local governmental and non-governmental actors play a larger and better defined role. The author also calls for better criticism of and greater transparency in current government efforts as well as more robust institutions for enforcement, assessment and public participation. | |
Mexico's General Climate Change Law | 2012 | Michael Gerrard, Anne Siders | International and Foreign, Publications | 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. Published in "What are the next steps? Legal Perspectives on Mexico's General Law on Climate Change" by The Mexico-US Climate Law Network. | |
Michael Bloomberg's Environmental Record, Bill de Blasio's Promises | 2013-11 | Michael Gerrard | New York, Publications | 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. To sum it all up, Bloomberg's environmental achievements far exceeded his promises in most areas. His one major failure (congestion pricing) was not for lack of trying. Mayor-elect de Blasio says he plans to continue and extend most of his predecessor's policies, though with a new emphasis on workforce training. Published in Volume 250 of New York Law Journal. | |
Microgrids and Resilience to Climate-Driven Impacts on Public Health | 2018-01-31 | Justin Gundlach | Adaptation, Electric Sector, New York, Publications | ||
Model Green Building Ordinance For Municipalities Open for Comment | 2010-06 | Michael Gerrard | Green Building, Publications | In an effort to address these problems, Columbia Law School's Center for Climate Change Law (CCCL) has undertaken an effort to draft a model municipal ordinance on green buildings. The first step was to compile as many such existing ordinances and policies as possible; we found 163 of them, and have posted them on our Web site. We then analyzed them to find their best features and create a model ordinance. We have posted this model, together with detailed commentaries on its features, the rationale behind the choices it embodies, the associated legal issues, and various optional add-ons that municipalities may wish to consider. The model and commentary are primarily the work of lawyers at CCCL and Arnold & Porter, with several outside reviewers, including the Center for Code Reform. We are now inviting comments on this draft model. Published in Volume 243 of New York Law Journal. | |
Model Green Building Ordinance Proposed for Adoption by New York Municipalities | 2010 | Michael Gerrard, Jason James | New York, Publications | Published in Volume 24 NYSBA/MLRC Municipal Lawyer. | |
Model Municipal Ordinance Project Designed to Facilitate Wind and Solar Projects and Green Buildings | 2011-04 | Michael Gerrard, Danielle Sugarman | Energy, Green Building, Publications, Renewable Energy | Published in Volume 31 of The New York Environmental Reporter. | |
Moving at a Glacial Pace: What Can State Attorneys General Do about SEC Inattention to Nondisclosure of Financially Material Risks arising from Climate Change? | 2014-02 | Nina Hart | Disclosures, Publications | This working paper reviews SEC actions to date on the issue of climate change disclosure as well as other studies on disclosure rates to assess whether further guidance is warranted. Based on this review, the paper concludes that, both before and after the 2010 interpretive release, disclosure rates and quality amongst companies have been inconsistent. Additionally, although the SEC indicated in its 2010 interpretive release that it would take further actions to monitor disclosure practices and assess whether further guidance is necessary, the paper argues that the agency has largely failed to do so. | |
Municipal Green Building Ordinances in the U.S. | 2010-01 | Marne Sussman | Green Building, Publications | 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. | |
Municipal Powers Under SEQRA | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | The State Environmental Quality Review Act (SEQRA) confers considerable powers on New York State municipalities. In fact, most municipalities are probably unaware of the full scope of authority they are given by this statute. Published in the New York Law Journal. | ||
NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports | 2013-08 | Elizabeth Sheargold, Smita Walavalkar | Environmental Impact Assessment, NEPA, Publications | 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. | |
NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports | 2013-08 | Elizabeth Sheargold, Smita Walavalkar | Environmental Impact Assessment, Fossil Fuels, NEPA, Publications | 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. | |
NEPA and Its Progeny, in Climate Change Reader | William R. Rodgers, Jr.; Michael J. Robinson-Dorn (Editors) | Environmental Impact Assessment, NEPA, Publications | Climate Change provides a comprehensive and unique introduction to the emerging issues of global climate change. It presents many of the foundational documents, background scientific explanations, and excerpts from the leading thinkers in the vast literature on global warming. It features original articles and essays from scholars in the fields of environmental science, and environmental, energy, international and human rights law. Designed for use in the burgeoning number of new courses in areas such as global warming, climate change and climate justice, this book is organized around the topics of science, justice, impacts, energy, the U.S. response, international law, state and local law, and innovative litigation. The Reader weaves together the important story of the global warming saga in a thorough and approachable manner. | ||
New York Environmental Legislation and Regulations in 2013 | 2014-01 | Michael Gerrard | New York, Publications | New laws were signed by Governor Andrew Cuomo in 2013 regarding notice requirements in the Brownfield Cleanup Program, Bottle Bill enforcement, mercury thermostats, oversized lobsters, shark fins, and Eurasian boars, among other things. On the regulatory front, the state promulgated final regulations concerning New York's participation in the Regional Greenhouse Gas Initiative and regulatory relief for certain dairy farms, and proposed regulations for liquefied natural gas facilities and invasive species. This annual survey describes new environmental laws that were enacted in New York in 2013, as well as several significant regulatory developments. The survey identifies the laws by their chapter number in the Laws of New York, 2013. Published in Volume 251 of New York Law Journal. | |
New York Environmental Legislation in 2017 | 2018-01-12 | Michael B. Gerrard and Edward McTiernan | New York, Publications | In 2017, New York State enacted multiple laws that tackle aspects of two major environmental issues facing the state: protecting water quality and advancing the state's clean energy goals. In addition, Governor Andrew Cuomo signed laws concerning oil tankers on the Hudson, elephant welfare, food waste, and lead paint. He also approved a moratorium barring New York City's plastic bag fee from taking effect. This annual survey reports on these developments and other environmental laws enacted in 2017. | |
New York Environmental Legislation in 2018 | 2019-01-10 | by Michael B. Gerrard and Edward McTiernan | New York, Publications | ||
New York State Leading on Utility Climate Change Adaptation | 2014-02 | Ethan Strell, Christine Fazio | Adaptation, Energy, New York, Publications | In a precedent-setting decision potentially affecting all New York State utilities, the state's Public Service Commission unanimously approved a settlement requiring Con Edison to implement state-of-the-art measures to plan for and protect its electric, gas, and steam systems from the effects of climate change. Published in New York Law Journal. | |
New York's New Congestion Pricing Law | 2019-05-10 | by Michael Gerrard and Edward McTiernan | New York, Publications | ||
New York's New Sea Level Rise Projections Will Affect Land Use, Infrastructure | 2017-03-09 | Michael B. Gerrard, Edward McTiernan | Adaptation, Climate Science, Environmental Impact Assessment, Land Use and Forestry, New York, SEQRA | As required by a 2014 state statute, the New York State Department of Environmental Conservation (DEC) has issued official sea level rise projections effective February 22. They reflect a range of possible scenarios; at the high end, sea level in the New York City area could rise 75 inches (6.2 feet) by the year 2100. Now that they are embodied in a formal regulation (6 NYCRR Pt. 490), these projections may begin to affect a broad range of decisions in building and infrastructure siting, design, construction and materials; insurance and financing; securities disclosure; and estate planning. This article examines how sea level rise projections will affect land use and infrastructure. | |
New York's Revived Power Plant Siting Law Preempts Local Control | Michael Gerrard | Energy, Fossil Fuels, New York, Publications, Renewable Energy | Taking most observers by surprise, the New York State Legislature on June 22, 2011, overwhelmingly passed The Power NY Act of 2011. Governor Andrew Cuomo signed it on Aug. 4. The new law revives Article X of the Public Service Law after a nearly nine-year hibernation. As before, the law creates a one-stop, state-led program for permitting electric generating facilities while preempting local requirements. But the new Article X differs from its predecessor in several important ways: It covers facilities as small as 25 megawatts (down from the prior 80 megawatts threshold), it has even more generous provisions for funding intervenors, and it requires important new rules on environmental justice and carbon dioxide emissions. Some have linked the law's long-delayed passage to Governor Cuomo's insistence on closing the Indian Point nuclear power plant in Westchester County, and the need to replace its generating capacity. The new law will also ease the siting of wind farms, some of which have been inhibited by upstate towns that do not want them. Published in Volume 246 of New York Law Journal. | ||
Obama Reelection Clears Path For Numerous New EPA Regulations | Michael Gerrard | Environmental Impact Assessment, NEPA, Publications, US Policy | This column will discuss the important EPA regulations that are in the pipeline. Published in Volume 248 of New York Law Journal. | ||
Opportunities for and Hurdles to Combined Heat and Power in New York City | 2013-05 | Alexis Saba, Bianca Howard, Michael Gerrard, Vijay Modi | Electric Sector, Energy, Energy Efficiency, Green Building, New York, Publications | Combined heat and power (CHP or cogeneration) is the simultaneous production of electricity and thermal energy from a single fuel source. In many ways, New York City is a hospitable environment for CHP development. Nonetheless, there are also many characteristics of New York that make it a difficult place to advance CHP. The utility infrastructure is dense and complex—and largely underneath a dense and complex built environment. 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. | |
Overcoming Impediments to Offshore Carbon Dioxide Storage: Legal Issues in the U.S. and Canada | 2019-03-18 | by Romany M. Webb and Michael B. Gerrard | Carbon Capture and Storage, Publications | ||
Painting REDD Offsets Green: A Case for Statutory Deuteranopia | 2009 | Rommel Cassis | Cap and Trade, Land Use and Forestry, Publications, UNFCCC | This paper evaluates whether the issuance REDD offsets is an effective climate change mitigation measure, and provides recommendations on the content of national legislation for REDD offsets. | |
Patterns of Climate Change Litigation During Trump Era | Michael B. Gerrard and Edward McTiernan | Fossil Fuels, NEPA, Publications, US Policy | Litigation about climate change took off in the early 2000s. Its focus has varied with the occupant of the White House. Under George W. Bush, most suits were brought by environmental groups and blue states, frustrated by the lack of federal action, seeking to push regulations or impede fossil fuel projects. Under Barack Obama, climate litigation was mostly industry and red states seeking to block regulations. And now under Donald Trump, it is largely about environmental groups and blue states trying to preserve the rules adopted under President Obama, and to seek novel remedies to get around federal hostility to action on climate change. More than 100 lawsuits were filed in the United States in 2017 raising claims concerning either the impacts of climate change or reducing greenhouse gas emissions; 82 of them were specifically about federal deregulation. These suits are all tracked on a website we maintain, www.climatecasechart.com. | ||
Persistent Regulations: A Detailed Assessment of the Trump Administration's Efforts to Repeal Federal Climate Protections | 2019-06-18 | Jessica Wentz, Michael Gerrard | Clean Air Act, Energy, Energy Efficiency, Fossil Fuels, Publications, US Litigation, US Policy | This paper takes a critical look at what the Trump administration has actually accomplished in terms of repealing and modifying greenhouse gas emission standards and otherwise advancing its pro-fossil fuel agenda as of June 2019. | |
Planning for the Effects of Climate Change on Natural Resources | 2017-03 | Jessica Wentz | Adaptation, Environmental Impact Assessment, Land Use and Forestry, Natural Resources, Publications, US Policy | This article, published in the Environmental Law Reporter, examines how the federal agencies that manage natural resources and public lands can account for the current and future impacts of climate change in their management activities. It finds that the federal agencies responsible for managing these resources have generally recognized that considerations pertaining to climate change adaptation should be incorporated into existing planning processes, yet this topic is still treated as an afterthought in many planning documents. Only a few federal agencies have published guidance on how managers should consider climate change impacts and their management implications. This Article explains why these agencies are legally required to consider climate-related risks in planning processes, and presents recommendations and a model protocol for conducting this analysis. | |
Policy Readiness for Offshore Carbon Dioxide Storage in the Northeast | 2017-06-13 | Romany Webb, Michael Gerrard | Carbon Capture and Storage, Climate Engineering, Energy, Fossil Fuels, Publications | Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered ("carbon capture and storage" or "CCS"). Research is currently being undertaken into the possibility of injecting carbon dioxide into the seabed. One study, involving researchers from Columbia's Lamont-Doherty Earth Observatory, aims to identify possible injection sites in the seabed along the northeast coast of the U.S. It is anticipated that, following identification of suitable sites, a demonstration project will be undertaken to assess the feasibility of offshore CCS. This paper outlines key regulatory requirements for the demonstration project and any subsequent commercial operations. | |
Potential Liability of Governments for Failure to Prepare for Climate Change | 2015-08 | Jennifer Klein | Adaptation, Publications | As governments turn a blind eye to the accumulating risks of climate change, do they expose themselves to potential legal liability? This paper explores three possible legal claims against state and local governments for their failure to prepare for 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 about climate change risks, including the sovereign immunity defense as well as difficulties proving causation and intent in this context. Finally, the paper explores claims for just compensation where a government causes property to be damaged or destroyed through its failure to prevent the impacts of climate change, and concludes that this type of suit is the most promising of the three. | |
Preemption and Alteration of EPA and State Authority to Regulate Greenhouse Gases in the Kerry-Lieberman Bill | 2010-05 | Bradford McCormick, Hannah Chang | Clean Air Act, Publications, US Policy | 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). This paper summarizes KL's preemption and alteration of state climate change regulatory authority and EPA authority to regulate GHG emissions under the Clean Air Act. | |
Prison Preparedness and Legal Obligations To Protect Prisoners During Natural Disasters | 2018-05-14 | William Omorogieva | Adaptation, Disasters, Environmental Justice, Human Rights, Publications | ||
Public Utilities Commissions & Energy Efficiency: A Handbook of Legal and Regulatory Tools for Commissioners & Advocates | 2012-08 | Shelley Welton et al. | Electric Sector, Energy, Energy Efficiency, Publications | This report 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 sets forth a wide range of policies that PUCs around the country are using to successfully promote energy efficiency, including setting energy efficiency targets, aligning utility incentives with energy efficiency goals, financing energy efficiency, resource planning, demand response policies, and incorporating energy efficiency into state environmental policy act and siting procedures. By highlighting the breadth of strategies that PUCs have at their disposal, the handbook may prove useful to PUC commissioners and staff, and to energy efficiency advocates, no matter what political or practical constraints they might be facing in their states. | |
Putting Green Infrastructure on Private Property in New York City | 2017-05-30 | Justin Gundlach | Adaptation, Green Building, New York, Publications | New York's Department of Environmental Protection is under pressure to install large amounts of green infrastructure in order to take pressure off of the city's combined sewer system, which currently discharges raw sewage into adjacent water bodies during periods of moderate to severe precipitation. Installing enough green infrastructure to make a difference to that end (and others) means encouraging a large number of private property owners to install rain gardens and green roofs. Efforts to do that to date have fallen short. This paper discusses the city's goals for green infrastructure (and reasons for wanting it), the challenges facing efforts to spend public money on assets installed on private property, and possible sources of solutions. | |
Recent Developments Under State Environmental Quality Review Act | 2012-07 | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | Published in Volume 248 of New York Law Journal. | |
Reconciling International Investment Law and Climate Change Policy: Potential Liability for Climate Measures Under the Trans-Pacific Partnership | 2015-07 | Meredith Wilensky | International and Foreign, International Trade and Investment, Publications | 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. Published in Volume 45 of Environmental Law Reporter. | |
Red China Going Green: The Emergence and Current Development of Carbon Emissions Trading in the World's Largest Carbon Emitter | 2013-06 | Xiaotang Wang | Cap and Trade, International and Foreign, Publications | China is currently piloting carbon emissions trading schemes in seven provinces and cities as a means to reduce its carbon emissions and realize "green growth." The hope is that these pilot programs would eventually pave the way to a national carbon trading scheme by 2015-16. This paper closely examines the rules and designs of the seven schemes, and discusses some key challenges to successful implementation and national integration, such as MRV issues and emissions allowance allocation methods. | |
Reducing Legal Hurdles to Combined Heat and Power in New York | 2013-05 | Michael Gerrard | Energy, Energy Efficiency, Green Building, New York, Publications | 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. Published in Volume 249 of New York Law Journal. | |
Regulating Imports into RGGI: Toward a Legal, Workable Solution | 2013-08 | Shelley Welton, Michael Gerrard, Jason Munster | Cap and Trade, Publications | This paper explores the legal workability and constitutionality of regulating electricity imports into RGGI. After considering how such a mechanism might be designed, the paper examines whether a mechanism that requires RGGI load-serving entities to purchase emissions allowances to cover imported power could survive a constitutional challenge under either the dormant Commerce Clause or Federal Power Act preemption. | |
Reverse Environmental Assessment Analysis for the Adaptation of Projects, Plans, and Programs to the Effects of Climate Change in the EU. Evaluation of the Proposal for an EIA Directive | 2014 | Teresa Parejo-Navajas | Environmental Impact Assessment, International and Foreign, Publications | It is clear that mitigation measures are not enough to tackle climate change effects and, therefore, some adaptation measures will be needed to improve resiliency. The new Reverse Environmental Impact Assessment (REIA) analysis, so named by Professor Michael B. Gerrard1, evaluates the impacts that the "transformed environment" -a result of the adverse effects of climate change- may cause to a project, plan, or program, in order to allow those undertaking these activities to act proactively. There are many countries that have taken action accordingly. The EU has elaborated "Guidances" on integrating climate and biodiversity into either the Environmental Impact Assessment (EIA) or the Strategic Environmental Assessment (SEA) processes. Regardless of its importance, and despite the inclusion of some references to the adaptation of the projects to climate change, the review of the Directive 2011/92/EU on the EIA does not make a clear commitment for the REIA tool, losing a great opportunity to introduce this new instrument into the legal systems of all EU Member States to really meet its goal of achieving a high level of environmental protection, adapting the EIA to new challenges, among others, climate change. | |
Reverse Environmental Impact Analysis: Effect of Climate Change on Projects | 2012-03 | Michael Gerrard | Environmental Impact Assessment, Publications | This article explores the protocols that various government agencies have issued for reverse environmental impact analysis. It then discusses one pending case on the issue. It reports on a survey that investigated whether and how reverse environmental impact analysis is being performed in recent EISs, and it summarizes the analysis in a number of EISs. Published in Volume 247 of New York Law Journal. | |
Sadly, The Paris Agreement Isn't Nearly Enough | 2016-10 | Michael Gerrard | Displacement and Migration, Human Rights, Publications, UNFCCC | This article explains why the international pledges submitted for the Paris Agreement are not enough to avoid serious impacts on people and communities - specifically, impacts leading to the displacement of millions of people from their home. | |
Science Heads List of Candidate Debate Queries | 2012-03 | Michael Gerrard | Adaptation, Publications, US Policy | Policy on the environment, energy, and natural resources has seldom figured prominently in a presidential election, all the less so as time elapses since the first Earth Day. To judge by the more than twenty debates thus far in the current presidential campaign, it isn't likely to be on top of the agenda this year. Although regulation itself has been featured in the campaign — recall the criticism of the new lightbulb efficiency standards and of the Solyndra bankruptcy, not to mention rejection of climate change science — broader topics in environmental policy have largely taken a back seat to jobs, the budget, the economy, and foreign relations. Yet environmental policy, properly constructed, can have a positive effect on all these concerns. Published in Volume 29 of The Environmental Forum. | |
Sea-Level Rise and Changing Times for Florida Local Governments | 2016-04 | David Markell | Adaptation, Displacement and Migration, Publications | This working paper reviews three recent developments, which relate primarily to comprehensive planning in Florida, and explores their implications for Florida's local governments, among others. It begins with the State's decision, in 2011 legislation, to give local governments a new, optional tool – referred to as "Adaptation Action Areas" (AAAs) – to address sea-level rise and related issues in local comprehensive plans. The paper then turns to a second piece of Florida legislation, this one enacted in 2015, which also identifies sea-level rise as a concern but this time mandates that local governments begin to address it and other causes of flood-related risks through their comprehensive planning process. Finally, the paper discusses a third initiative, launched in 2009 by four Southeast Florida counties – Miami-Dade, Broward, Palm Beach, and Monroe – to foster local government and regional coordination on sea-level rise and other climate change issues. This review of these three developments provides a relatively in-depth starting point for understanding key features of the emerging legal and institutional landscape in Florida for addressing sea-level rise, especially with respect to comprehensive planning. It thereby contributes to filling an enormous knowledge deficit concerning adaptation initiatives. | |
SEQRA and Climate Change | 2008 | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | Published in Volume 10 of NYSBA Government, Law and Policy Journal. | |
Setting the Table for an International Environmental Agreement: A Beginner's Guide to Negotiating Mandates | 2018-04-12 | by Susan Biniaz | International and Foreign, Publications | You may be an experienced negotiator of international environmental agreements. Or you may be new to the field and excited to negotiate your very first one. In both cases, you know your precedents, helped craft your government's positions, and are anxious to get started. But wait…before you negotiate the agreement, you will need to navigate the mandate. A mandate launches the negotiation of an international environmental instrument and sets forth its terms of reference, both procedural (such as where and when it will take place) and substantive (such as what the instrument should address). It is generally issued by the UN General Assembly (e.g., in the case of a new global instrument), a treaty body (e.g., in the case of an amendment to an existing agreement), or another institution (e.g., in the case of an instrument covering a particular region). There is far more commentary on international agreements than on the negotiating mandates that precede them. However, such mandates can be highly significant. They are often the place where key issues are pre-negotiated and, even when they do not go so far, what a mandate says – or does not say -- can affect the ultimate design and content of an agreement, as well as its attractiveness to potential Parties. This guide looks at the issues commonly addressed by negotiating mandates for international environmental agreements, options for addressing them, and examples of mandate provisions that have been particularly significant in relation to agreements' outcomes. | |
Shopping for State Constitutions: Unequal Gift Clauses as Obstacles to Optimal State Encouragement of Carbon Sequestration | Nicholas Houpt | Energy, Fossil Fuels, Publications, US Policy | Carbon capture and sequestration technology (CCS) faces a difficult barrier to market entry: liability for the technology's many long-term risks. This paper's fifty state survey shows that some state constitutions' gift clauses prevent indemnification of private CCS developers while other state constitutions allow indemnification. This asymmetry in constitutionally-allowed financial encouragement results in unfair interstate competition and poor incentives for safe site-selection. This paper proposes alternative financing strategies that states can use to close the gap and federal interventions that could level the playing field. Published in Volume 36 of Columbia Journal of Environmental Law. | ||
State Authority to Preempt Local Laws Regulating Renewable Energy Projects | 2018-05-11 | Michael B. Gerrard and Edward McTiernan | Energy, New York, Publications | ||
State Bar Task Force: 22 New York Actions to Address Climate Change | 2009-01 | Michael Gerrard | Adaptation, New York, Publications | The new Obama administration is reversing eight years of federal refusal to take mandatory action to address climate change. However, the lower levels of government will continue to play central roles. States and municipalities are the principal regulators of building construction, land use, and electric utilities; they are major users of goods and services that generate greenhouse gases (GHGs)—and they have other key roles. To see how New York can better contribute to these efforts, in 2008 Bernice K. Leber, president of the New York State Bar Association, convened a Task Force on Global Warming. Its 12 members were given the task of updating two prior NYSBA reports on the subject1 and, more importantly, formulating specific action recommendations that could be presented to Democratic Governor David Paterson, his administrative agencies, and the Legislature. I was honored to be named chair of the task force. Students in the Columbia Law School Environmental Law Clinic performed key research, and the NYSBA's Environmental Law Section and numerous state agencies provided invaluable assistance. The task force report will be released at the Presidential Summit at the NYSBA annual meeting on Jan. 28, 2009 at the Marriott Marquis Hotel, and will be available at www.nysba.org.4 This article gives a preview of its recommendations. The task force was acutely aware of the state's current fiscal situation and, thus, concentrated on action items that it expects will either save money because of their energy cost savings or will have, at worst, a modest cost to state and local government. Published in Volume 241 of New York Law Journal. | |
State Dynamism, Federal Constraints: Possible Constitutional Hurdles to Cross-Border Cap-and-Trade | 2012 | Shelley Welton | Cap and Trade, Publications | 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. Published in Volume 27 of Natural Resources & Environment. | |
State Hazard Mitigation Plans & Climate Change: Rating the States | 2013-11 | Matt Babcock | Adaptation, Publications | In accordance with federal law, all states must have an approved statewide hazard mitigation plan in order to receive federal disaster mitigation funding from the Federal Emergency Management Agency (FEMA). The 50-state survey considers to what extent and in what manner climate change related issues are incorporated into existing plans. All states are categorized and ranked. | |
State Hazard Mitigation Plans & Climate Change: Rating the States 2019 Update | 2019-09-11 | Dena Adler, Emma Gosliner | Adaptation, Disaster, Disasters, Publications, US Policy | ||
State Public Utility Commissions' Powers to Advance Energy Efficiency | 2012-09 | Michael Gerrard | Electric Sector, Energy, Energy Efficiency, New York, Publications | This column summarizes the variety of powers and techniques of PUCs to advance energy efficiency. Published in Volume 248 of New York Law Journal. | |
States Should Think Twice Before Refusing Any Response to EPA's Clean Power Rules | 2015-03 | Daniel Selmi | Clean Air Act, Energy, Publications | This essay highlights the reasons that states should think carefully before "saying no" and refusing to comply with EPA's clean power rules. The essay discusses five consequences of not submitting a 111(d): (1) EPA must impose FIPS that will probably focus on power plants, and states will cede regulatory control to the federal government; (2) Ratepayers likely will fare worse under a FIP than under a state-crafted plan; (3) Temporizing now and deciding to prepare a compliance plan later will involve delays in extracting the state from the FIP; (4) Late compliers may lose important opportunities for efficient compliance and informational benefits that accrue from participating at the outset; and (5) "saying no" to avoid a predicted political backlash is unnecessary. Finally, the essay argues that, because the need to respond to climate change will not disappear, states are better off beginning now to plan their transition to a power system with reduced carbon emissions. | |
Stricter Rules on Storm Water Discharges Taking Effect | 2007-11 | Michael Gerrard | Adaptation, Publications | On Jan. 8, 2008, new requirements will take effect in New York requiring some previously unregulated entities to file for permits to discharge storm water, and imposing stricter or different requirements on those entities that are already regulated. The state is requiring urbanized communities and publicly owned institutions, referred to as municipal separate storm sewer systems (MS4s), to establish fully functional stormwater management programs (SWMPs) by that date. The state has issued new draft permits for MS4s and also for operators of construction sites over one acre, which go into effect on Jan. 8. At the same time, the U.S. Environmental Protection Agency (EPA) has identified storm water discharges of pollutants as an enforcement priority for 2008-2010. Specifically, EPA intends to focus its enforcement efforts on storm water runoff from homebuilding and "big box" store construction, ready-mix concrete and crushed stone operations, concentrated animal feeding operations, municipal combined sewer overflows, sanitary sewer overflows, and sand and gravel operations. This article will briefly explain the history of the National Pollutant Discharge Elimination System (NPDES) program as it relates to storm water management, the requirements of NPDES Phase II, and what MS4s and other regulated entities in New York must do to comply with the most recent facets of Phase II implementation. Published in Volume 238 of New York Law Journal. | |
Survey of 2012 Cases Under State Environmental Quality Review Act | 2013-07 | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | Published in Volume 250 of New York Law Journal. | |
Survey of 2013 Cases Under State Quality Review Act | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | Published in Volume 252 of New York Law Journal. | ||
Survey of 2016 Cases Under New York State Environmental Quality Review Act | 2017-07-13 | Michael B. Gerrard and Edward McTiernan | New York, Publications, SEQRA, US Litigation | ||
Survey of Climate Change Considerations in Federal EISs, 2012-2014 | 2016-02 | Jessica Wentz, Grant Glovin, Adrian Ang | Environmental Impact Assessment, Publications | This report describes the results of a survey of various topics related to climate change mitigation and adaptation are evaluated in federal Environmental Impact Statements (EIS) prepared from July 2012 through December 2014. The report is accompanied by an excel database that lists each of the EISs that was surveyed and the manner in which these documents address climate change-related considerations. | |
Survey of Climate Change Litigation | 2007-09 | Michael Gerrard | Publications, US Litigation | Approximately 35 lawsuits have been filed in the United States concerning global climate change, together with several administrative proceedings and officially threatened actions. About half of them have led to judicial decisions, and several of those are under appeal; most of the rest are pending. Much attention has deservedly gone to the U.S. Supreme Court's decision in Massachusetts v. the EPA, but that is only the tip of the figurative iceberg; and unlike most of the real ones, it is growing rather than melting. This article surveys U.S. climate change litigation. The lawsuits can be broadly divided between those raising statutory claims and (a far smaller group) common-law claims. There is also a small third category of public international law claims. Published in Volume 238 of New York Law Journal. | |
Survey of Greenhouse Gas Considerations in Federal Environmental Impact Statements and Environmental Assessments for Fossil Fuel-Related Projects, 2017-2018 | 2019-10-15 | Madeleine Siegel and Alexander Loznak | Energy, NEPA, Publications | Climate change is already generating enormous costs to the environment and public health both in the United States and around the world. These costs will only escalate over the time with increasing greenhouse gas (GHG) emissions. Under the National Environmental Policy Act (NEPA), U.S. federal agencies must assess the environmental effects of proposals for major federal projects, plans and programs before deciding if they should proceed. To conduct a meaningful environmental review of proposed projects, federal agencies must carefully consider how these projects contribute to climate change and greenhouse gas emissions—particularly for projects concerning fossil fuel extraction, transport, and use. The courts have established that NEPA includes obligations to consider climate change effects. Under the Obama administration, the Council for Environmental Quality sought to clarify those obligations by issuing guidance on how NEPA analysis and documentation should address GHG emissions. The Trump administration has sought to roll back and replace those recommendations, raising new questions about how federal agencies have assessed, and will continue to assess, climate change effects during environmental review. To evaluate how federal agencies are addressing climate change in environmental reviews under NEPA, this report surveys of federal environmental impact statements (EISs) and environmental assessments (EAs) completed in 2017-2018 for projects related to fossil fuel production, processing, and transport. In total, the report reviews sixteen EISs and ten EAs which met these criteria within the selected timeframe. The report focuses on fossil fuel project proposals because of their contributions to greenhouse gas emissions. | |
Survey of SEQRA Cases From 2007 | Michael Gerrard | Environmental Impact Assessment, Publications, SEQRA | Published in Volume 239 of New York Law Journal. | ||
Sustainable Development and the Brazilian Judge | Gabriel Wedy | International and Foreign, Publications | 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. | ||
Taking Action in New York on Climate Change | 2009-01 | Michael Gerrard et al. | New York, Publications | The New York State Bar Association (NYSBA) Task Force on Global Warming (the Task Force) has been convened by NYSBA President Bernice Leber to summarize New York's existing laws and programs regarding climate change and to make specific proposals that the State can implement in a timely and cost-effective fashion to reduce greenhouse gas (GHG) emissions and to prepare for the impacts of climate change. New York has taken many steps to address climate change; however, there is much more that can be done. The Task Force has not attempted to comprehensively suggest every possible action, but rather has selected 22 specific proposals that can be readily accomplished and that will yield real results. It is the hope of the Task Force that officials in the executive and legislative branches will seriously consider the recommendations made in this Report and seek to implement as many as possible. In making these recommendations, the Task Force was acutely aware of New York State's current fiscal situation and has thus concentrated on action items that it expects will either save money because of their energy cost savings or will have, at worst, a modest cost to State and local government. Published by the New York State Bar Association. | |
Technology Transfer and Dissemination Under the UNFCCC: Achievements and New Perspectives | 2013-05 | Stephanie Chuffart | International and Foreign, Publications, Technology Transfer, UNFCCC | Data from the UNFCCC Subsidiary Body for Scientific and Technological Advice illustrate 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 Global Environment Facility, the white paper suggests possible solutions for enhanced environmental technology diffusion within the UNFCCC regime. | |
The Application of Open Records Laws to Publicly Funded Science | 2017-04-20 | Lauren Kurtz | Climate Science, Publications | The federal Freedom of Information Act (FOIA) and the state law equivalents promote government transparency by allowing citizens to request copies of administrative records. Any citizen can file a request with a government entity for copies of government documents, and the government must either produce the information or explain why it is exempt from production (for example, for national security purposes). While these laws were originally written with an eye toward policy makers and bureaucrats, in recent years, these open records laws have been used increasingly to request information from publicly funded scientists. Scientists employed by federal agencies, state agencies, or state universities, as well as scientists at private institutions who have received federal grants, have all received open records requests for information about their work. Treatment of open record requests for scientific work varies widely among the states, and between the states and the federal government. Some jurisdictions also make distinctions based on how the research was funded, e.g., a grant recipient may be treated differently than an employee, even if the work is identical. Concurrently, there also has been a push toward "open data" in science, i.e., making available a study's methodologies, results, and conclusions. This transparency is usually a requirement for publishing a study in a peer-reviewed journal so that anyone may try to replicate the research and compare results. This differentiation—seeking openness regarding methodologies, results, conclusions, and research data while also maintaining confidentiality for other materials such as peer-review correspondence—is already echoed in many jurisdictions' open records laws, from federal to state. However, in other jurisdictions, open records laws focus entirely on bureaucratic transparency and have done little to contemplate the special issues of scientific transparency. Given these inconsistencies, open records laws can serve as a double-edged sword when applied to publicly funded scientists. Open records requests may be used to further important principles of scientific transparency, but they also can be misused by bad actors who attempt to harass, intimidate, or try to discredit scientists whose research they dislike. This article first describes the federal treatment of open record requests and then details the four kinds of approaches used by different states: statutory exclusion, statutory exemption, common law privileges, and balancing tests. In the discussion following, the article explains how some groups have tried to use open records laws to pursue outcomes that are clearly contrary to the public interest, and how certain open records laws may be particularly prone to misuse. | |
The Costs of Carbon: Examining the Competitiveness and International Trade Dimensions of the Waxman-Markey House Bill | 2009 | Svetlana German | International and Foreign, International Trade and Investment, Publications, Technology Transfer, US Policy | 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 trade measures designed to address competitiveness and carbon leakage, and assesses the WTO legality of the proposed measures in the Waxman-Markey Bill and proposes alternative mechanisms that may yield economically sound solutions while remaining mindful of equitable principles. | |
The Day After Tomorrow: A Survey Of How Gulf Coast State Utility Commissions and Utilities are Preparing for Future Storms | Katherine Carey | Adaptation, Energy, Publications | A new paper by Katherine Carey looks at the different actions that state utility commissions in the Southeast have taken to ensure that their electric utilities are prepared for tomorrow's storms. | ||
The Energy Improvement of the Urban Existing Building Stock: A Proposal for Action Arising from Best Practice Examples | 2017-05-03 | Teresa Parejo-Navajas | Energy, Energy Efficiency, New York, Publications | Improving energy efficiency in existing buildings presents an opportunity for reducing greenhouse gas emissions. Numerous measures meant to increase efficiency and decrease emissions have been implemented in cities across Europe and the United States. Standing out from the rest is New York City, a remarkable example of commitment to the fight against climate change. The city has urged its authorities to take important measures in order to eliminate (or at least diminish) the adverse effects resulting from its special characteristics, great urban density, and large percentage of greenhouse gas emissions coming from an aged building stock. Yet there is always room for improvement. Thus, this comparative study of some of the most successful measures developed in selected cities aims at providing legal professionals with best practices for greening the existing building stock of New York City and, eventually, of any city in the world. | |
The Energy Improvement of the Urban Existing Building Stock: A Proposal for Action Arising from Best Practice Examples (pre-publication version) | 2015 | Teresa Parejo-Navajas | Energy, Energy Efficiency, Publications | Improving energy efficiency in existing buildings represents a great opportunity for reducing greenhouse gas emissions. Numerous measures to increase efficiency and decrease emissions have been put in place in cities all around Europe and in the US. But there are some that stand out from the rest, like New York City, which is a remarkable example of commitment to the fight against climate change. This is due to the city's special characteristics, with a great urban density and a large percentage of greenhouse gas emissions coming from its aged building stock, which has urged its authorities to take important measures in order to eliminate (or at least diminish) its adverse effects. However, there is always room for improvement. Thus, a comparative study between some of the most successful measures developed in selected European cities and New York City, will be aimed at giving some useful elements to legal professionals in order to improve the existing energy efficiency measures for greening the existing building stock in any city around the world. | |
The Environment in New York State | 2012-09 | Michael Gerrard, Claire H. Woods | New York, Publications | This article explores the environmental policy in New York State. Science is significant as a driver of environmental policy, but public opinion is even more important. The story of the New York State's water supply is dominated by the historic quest to supply water to New York City. The State Environmental Quality Review Act (SEQRA) has been the most fertile source of environmental litigation in New York State courts. New York's solid waste expenditures have soared as it has had to pay commercial landfills and incinerators to take waste that had previously been cheaply dumped at Fresh Kills. New York began the modern era as a vigorous and innovative leader in environmental protection measures, but since the early 1990s, the paralyzing partisanship in the legislature and inconsistent leadership in the governor's office have moved the state considerably further back in the national pack on many environmental issues. Published in The Oxford Handbook of New York State Government and Politics. | |
The EPA's Proposed Transport Rule: Implications for Climate Change Regulation | 2010-07 | Jessica Wentz | Clean Air Act, Fossil Fuels, Publications, US Policy | 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. | |
The Law of Adaptation to Climate Change : U.S. and International Aspects | 2012 | Michael Gerrard, Katrina Fischer Kuh (Co-Editors) | Adaptation, International and Foreign, Publications, US Policy | A comprehensive resource of laws aimed at increasing resilience and reducing vulnerability to climate change, this state-of-the-art compendium examines how laws are being modified, finessed, or imagined to deal with the impacts of climate change. | |
The Law of Clean Energy: Efficiency and Renewables | 2011 | Michael Gerrard | Energy, Energy Efficiency, Publications, Renewable Energy | Clearly explaining the role that efficiency and renewables will play in combating climate change, this book covers energy efficiency laws at federal, state, and local levels. Topics range from tax and nontax incentives to the use of energy in different sectors and various renewable energy sources, and includes a 50-state survey of actions on energy efficiency and renewables. | |
The Law of Green Buildings: Regulatory and Legal Issues in Design, Construction, Operations, and Financing | 2010 | Michael Gerrard, J. Cullen Howe | Green Building, Publications | The Law of Green Buildings provides an overview of green buildings and sustainable development, explaining what makes a building "green" as well as governmental initiatives to promote these buildings. The authors highlight significant statutes and regulations, examine green building rating systems and siting, address retrofitting, and analyze legal issues that attorneys and other building professionals should be aware of when advising clients seeking to construct, finance, or lease a green building. | |
The Law on What Documents Scientists Must Keep and Disclose | 2012-10 | Michael Gerrard, Elizabeth Sheargold | Climate Science, Publications, US Litigation | Recently, several climate scientists have received demands to produce their raw data, working notes, e-mails, letters, or other communications. These demands may come in the form of subpoenas, U.S. Freedom of Information Act (FOIA) requests, or requests during litigation. Below are some general guidelines for scientists about complying with their document retention and disclosure obligations, both as a matter of routine practice and in the event of legal action. This article concerns only U.S. laws and is not legal advice, which should be sought from the scientist's lawyers or those of his or her employer. Published in Volume 93 of Earth and Space Science News. | |
The Legal Basis for IMO Climate Measures | 2018-06 | Aoife O'Leary, Jennifer Brown | International and Foreign, Publications | ||
The Obama Administration's First Environmental Policy Changes | 2009-07 | Michael Gerrard | Clean Air Act, Publications, US Policy | Published in The Metropolitan Corporate Counsel. | |
The Opportunities for and Hurdles to Combined Heat and Power in New York City | 2013-05 | Alexis Saba, Bianca Howard, Michael Gerrard, Vijay Modi | Energy Efficiency, New York, Publications | The Sabin Center for Climate Change Law and the Modi Research Group in Columbia University's Department of Mechanical Engineering worked on a collaborative research project that sought a comprehensive understanding of the feasibility of combined heat and power (CHP) projects in New York City. The results of their study, which took the approach of evaluating the entire city as a single institution with many building types and functions available for load sharing, are available in this publication. | |
The Price of Climate Deregulation: Adding Up the Costs and Benefits of Federal Greenhouse Gas Emission Standards | 2017-08 | Nadra Rahman, Jessica Wentz | Clean Air Act, Electric Sector, Energy, Fossil Fuels, Publications, US Policy | Federal climate regulations are currently under attack, in part due to the perception that these regulations will impose excessive costs on regulated industries and society as a whole. But according to federal projections, the benefits of these regulations would significantly outweigh the costs. We added up the projected economic impacts of major federal rules aimed at reducing greenhouse gas emissions and found that the net benefits could reach nearly $300 billion per year by 2030. The rules will also generate a variety of non-monetized benefits, such as improved public health outcomes and the creation of jobs, as well as climate mitigation benefits that will extend well beyond 2030. | |
The Status of Climate Change Litigation: A Global Review | 2017-05-23 | Michael Burger, Justin Gundlach | International and Foreign, Publications | Over the last decade, laws codifying national and international responses to climate change have grown in number, specificity, and importance. As these laws have recognized new rights and created new duties, litigation seeking to challenge either their facial validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and regulatory inaction has also continued. As a result, courts are adjudicating a growing number of disputes over actions—or inaction—related to climate change mitigation and adaptation efforts. | |
Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate | 2013-01 | Michael Gerrard, Gregory E. Wannier (Co-Editors) | Adaptation, Displacement and Migration, International and Foreign, Publications, Threatened Islands | Description Contents Resources Courses About the Authors Rising seas are endangering the habitability and very existence of several small island nations, mostly in the Pacific and Indian oceans. This is the first book to focus on the myriad legal issues posed by this tragic situation: If a nation is under water, is it still a state? Does it still have a seat at the United Nations? What becomes of its exclusive economic zone, the basis for its fishing rights? What obligations do other nations have to take in the displaced populations, and what are these peoples' rights and legal status once they arrive? Should there be a new international agreement on climate-displaced populations? Do these nations and their citizens have any legal recourse for compensation? Are there any courts that will hear their claims, and based on what theories? Leading legal scholars from around the world address these novel questions and propose answers. Cambridge University Press | |
Three Legal Visions of a 'Green New Deal' | 2019-03-13 | by Michael B. Gerrard and Edward McTiernan | New York, Publications | ||
Three Major Developments in International Climate Change Law | 2016-11 | Michael Gerrard, Edward McTiernan | International and Foreign, Publications, UNFCCC | This article discusses three major developments in international climate change law: the entry into force of the Paris Climate Agreement, and major new agreements on controlling hydrofuorocarbon emissions and pollution from airplanes. | |
To Negotiate a Carbon Tax: A Rough Map of Policy Interactions, Tradeoffs, and Risks | 2017-06-28 | Justin Gundlach | Carbon Tax, Clean Air Act, Publications, US Policy | Sooner or later, the federal government will assign a price to carbon dioxide emissions via legislation. The contents of that legislation will reflect negotiated agreement—built on various political tradeoffs—over a host of policy issues, ranging from taxes to energy efficiency standards. These tradeoffs would implicate not only the scope and price assigned by the carbon pricing policy, but also the policies with which it would interact. This paper anticipates that price will take the form of a carbon tax and describes interactions between that tax and various existing and proposed policies relating to climate change, energy, and environmental protection. Specifically, it proposes a typology for those interactions and applies it to characterize particular policies. It also notes how trading off particular policies for a more robust carbon tax could undermine the climate change mitigation goal of such a tax. | |
Towards a Greenhouse Gas Labeling Regime for Food | 2009-12 | Travis Annatoyn | Agriculture, Publications | This paper proposes that the federal government implement greenhouse gas labeling standards for food and food products sold within the United States. A labeling regime of this sort would shift consumer purchasing from "high emission" to "low emission" foods and encourage consumer awareness that food, like any other commodity, has a GHG "price." | |
Transparency and ICAO's Aviation Offsetting Scheme: Two Separate Concepts? | 2017-11-08 | Aoife O'Leary | International and Foreign, Publications, Transportation | ||
Trump's Executive Order On Regulatory Costs Undermines Congressional Authority | 2017-02 | Michael Burger, Jessica Wentz | Publications, US Policy | This op-ed, published in the Huffington Post, describes how President Trump's executive order on controlling regulatory costs conflicts with congressional legislation and undermines agencies' abilities to implement their responsibilities faithfully. | |
Turning the Tide in Coastal and Riverine Energy Infrastructure Adaptation: Can An Emerging Wave of Litigation Advance Preparation for Climate Change? | 2018-12-19 | Dena Adler. Posted with permission from the Oil and Gas, Natural Resources, and Energy Journal (One J). | Adaptation, Environmental Impact Assessment, Fossil Fuels, Publications, US Litigation | ||
U.S. Climate Change Litigation in the Age of Trump: Year One | 2018-02-14 | Dena Adler | Publications, US Litigation, US Policy | ||
U.S. Climate Change Litigation in the Age of Trump: Year Two | 2019-06-06 | Dena P. Adler | Publications, US Litigation, US Policy | ||
United States of America in Climate Change Liability: Transnational Law and Practice | 2012-01 | Michael Gerrard, Gregory Wannier | Publications, US Litigation | As frustration mounts in some quarters at the perceived inadequacy or speed of international action on climate change, and as the likelihood of significant impacts grows, the focus is increasingly turning to liability for climate change damage. Actual or potential climate change liability implicates a growing range of actors, including governments, industry, businesses, non-governmental organisations, individuals and legal practitioners. Climate Change Liability provides an objective, rigorous and accessible overview of the existing law and the direction it might take in seventeen developed and developing countries and the European Union. In some jurisdictions, the applicable law is less developed and less the subject of current debate. In others, actions for various kinds of climate change liability have already been brought, including high profile cases such as Massachusetts v. EPA in the United States. Each chapter explores the potential for and barriers to climate change liability in private and public law. | |
US Federal Climate Change Law in Obama's Second Term | 2014-02 | Michael B. Gerrard, Shelley Welton | International and Foreign, Publications, US Policy | This commentary details the United States' progress in advancing climate change law since President Barrack Obama's re-election in 2012, in spite of congressional dysfunction and opposition. It describes how the Obama administration is building upon earlier regulatory efforts by using existing statutory authority to regulate greenhouse gas emissions from both new and existing power plants. It also explains the important role the judiciary has played in facilitating more robust executive actions, while at the same time courts have rejected citizen efforts to force judicial remedies for the problem of climate change. Finally, it suggests some reasons why climate change has gained more prominence in the Obama administration's second term agenda and considers how domestic actions help the United States to reposition itself in international climate diplomacy. Published in Transnational Environmental Law. | |
Using Online Databasing to Unlock the Full Value of Environmental Impact Assessments | 2016-11 | Jessica Wentz | Environmental Impact Assessment, NEPA, Publications, SEQRA | This paper discusses how online databasing can be used to promote access to and utilization of environmental impact assessment (EIA) documents. It describes the utility of EIA documents, discusses the extent to which these documents are already available online, and outlines key considerations for developing a new, comprehensive database (or net work of databases) to improve public access to these documents. The report also includes a user guide to existing online EIA databases as an appendix. | |
What Happened to Byrd-Hagel? Its Curious Absence From Evaluations of The Paris Agreement | 2018-01-25 | Susan Biniaz | International and Foreign, Publications | ||
What Litigation of a Climate Nuisance Suit Might Look Like | 2012 | Michael Gerrard | Publications, US Litigation | 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 other words, the plaintiffs finally are able to litigate the merits. What would that litigation look like? Because I have spent thirty years as a practicing environmental litigator (sometimes acting for plaintiffs, sometimes for defendants) prior to entering academia, my head swims with the challenges such a case would pose. Most of the voluminous commentary on the common law GHG cases looks at the threshold issues; let's now peer across the threshold and see what's on the other side. What we'll find is an extraordinary number of open questions that would face the parties and the courts; in this Article I attempt to enumerate them, without undertaking the daunting task of answering them. Published in Volume 121 of Yale Law Journal Online, Reprinted in Volume 12 of Sustainable Development Law & Policy. | |
What's Ahead for Power Plants and Industry? Using the Clean Air Act to Reduce Greenhouse Gas Emissions, Building on Existing Regional Programs | 2011-02 | Franz T. Litz, Nicholas M. Bianco, Michael B. Gerrard, Gregory E. Wannier | Clean Air Act, Energy, Publications, US Policy | Written jointly with the World Resources Institute, this report asserts that cap and trade regulations are legally defensible under Section 111 of the Clean Air Act, and details options for implementing potential cap and trade regimes through federal-state partnerships. It particularly examines the legal viability of certain existing flexibility mechanisms that enable states and regions to achieve carbon reductions in a more efficient manner than is possible through standard-based EPA regulations. Issues discussed include: how categories are defined and whether emissions could be netted across multiple infrastructure types; whether the Act allows offsets (credits for emission reductions achieved outside of the regulated category); whether regional programs allowing for international allowance trading could survive; whether allowances could be borrowed and/or banked across multiple compliance periods (a common mechanism in carbon markets today); and what degree of cost-containment mechanisms such as caps on carbon prices would be valid. | |
Whose Backyard, Whose Risk: Fear and Fairness in Toxic and Nuclear Waste Siting | Michael Gerrard | Energy, Human Rights, Nuclear, Publications | In Whose Backyard, Whose Risk, environmental lawyer, professor, and commentator Michael B. Gerrard tackles the thorny issue of how and where to dispose of hazardous and radioactive waste. Gerrard, who has represented dozens of municipalities and community groups that have fought landfills and incinerators, as well as companies seeking permits, clearly and succinctly analyzes a problem that has generated a tremendous amount of political conflict, emotional anguish, and transaction costs. He proposes a new system of waste disposal that involves local control, state responsibility, and national allocation to deal comprehensively with multiple waste streams. Published by The MIT Press. | ||
Will Greenhouse Gas Rules Prohibit New Coal Power Plants? | 2013-10 | Christine A. Fazio, Ethan I. Strell | Energy, Fossil Fuels, Publications | On September 21, 2013, the EPA issued a revised proposed rule that would limit carbon dioxide (CO2) emissions from new fossil fuel-fired power plants. The re-proposal was intended to address concerns about the first proposal from last year, which was widely viewed as prohibiting in practice any new coal power plants from being built in the United States. However, the re-proposal, like the first proposal, is receiving significant criticism by industry and elected officials in states that depend on coal, because new coal plants will not be able to meet the proposed limits unless they install costly and commercially untested carbon capture and storage technology. |