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.
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.
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.
An executive summary of the report is available here.
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.
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?
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.
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.
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.
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.
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.
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.
The Reverse Environmental Impact Assessment analysis (REIA) evaluates the impacts that climate change may cause to a project, plan or program in order to act proactively. The EU is very aware of the need to take into account the possible effects of the changing climate in any proposed action. However, it has proposed an Environmental Impact
Assessment Directive which, although going in the right direction to climate proof the EU policy, would have been more effective if it had included an explicit provision for REIA analysis.
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.
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.
Government procurement represents an uncontroversial way to achieve greenhouse gas reductions. The sheer size of government purchases in many countries—which amount to at least 15% of global GDP —makes procurement a “low hanging fruit” for reducing carbon emissions. This paper reviews the history of United States federal procurement since the Clinton Administration and particularly examines the degree to which agencies must purchase “green” products that minimize upstream environmental impacts, or otherwise have low embedded carbon. These policies are important because procurement preferences for sustainable goods can provide demand-side market incentives that may function as a catalyst to promote the development of green goods in the broader consumer market as a whole.
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).
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.
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.
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.
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.
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.
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.
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.