Publications by Fellows
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.
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.
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.
This paper offers an answer to the question, “What levels of greenhouse gas (“GHG”) emissions reduction do the constituent programs in the U.S.’s existing regulatory patchwork achieve?” Its answer represents an attempt to measure the same effect from eight federal and state regulatory interventions. Notably, though it seeks to measure the same effect of diverse policies, this paper does not purport to measure the aggregated net effects of those policies on GHG emissions. Most important among its conclusions are the following. First, federal CAFE standards, the Clean Power Plan, and state renewable portfolio standards will be crucial for achieving emissions reduction goals. Second, the reductions available from the renewable fuel standard are uncertain and highly contentious. And third—an important subtext—the effectiveness (and cost-effectiveness) of this patchwork of programs is unwieldy even to measure, much less to ensure.
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.
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.
An abridged version of this article was published in the Environmental Law Reporter (Nov. 2015) and is available here.
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.
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.
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.
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.
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.
This article examines the reasons that “non-transmission alternatives”—including energy efficiency, energy storage, demand response, and distributed generation—have played a very limited role in meeting electricity grid constraints, despite their great potential.
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.
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.
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.
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 intented 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.
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.
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.
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.
The Hydraulic Fracturing Litigation Digest summarizes court decisions, plaintiffs complaints, and the most recent developments in hydraulic fracturing litigation brought in the United States.
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. The paper is accompanied by a spreadsheet collecting potentially relevant energy efficiency, demand response, and renewable energy laws, prepared by SCCCL summer legal intern Kathleen Kline.
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).
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.
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.
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.
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.
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.
Climate change is poised to become the next big thing in international trade law, but not for the reason most experts have long predicted. The much-ballyhooed ‘‘border carbon adjustment,’’ a controversial tariff imposed on imports to level the playing field between trading partners with strong climate regulations and those without, has yet to be employed anywhere in the world. Meanwhile, clean energy subsidies have already yielded two high-profile World Trade Organization disputes — one between Japan and Canada and the other between the U.S. and China—the resolution of which likely will shape important features of international climate policy and the world trading system for years to come. Contrary to conventional wisdom, then, it is not climate-related protectionism but rather governments’ support for climate-friendly technology that has come into conflict with international trade law rules. This article, published on July 12 in BNA’s Daily Environment Report and on July 11 in its World Climate Change Report, identifies the reasons why protectionism has yielded to subsidies as the primary climate change battleground at the WTO, and examines the key issues in two recently initiated trade disputes with potentially enormous ramifications for the future of clean energy.
Developments in climate change policy and international investment law may be ushering in a new era characterized by profound harmonization between the two regimes. New climate change policies aimed at incentivizing low-carbon foreign direct investment, particularly those policies related to finance and technology transfer, are proving to be compatible with international investment law in ways inconceivable for traditional environmental measures. Meanwhile, states have begun to negotiate international investment agreements that take into account policy goals, including climate change mitigation, that extend beyond the traditional preoccupation with investor protection. Though still tentative, emerging trends in both arenas are showing unmistakable signs of convergence.
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.
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.
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.
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.
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.
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.
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.
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 Sabin Center for Climate Change Law. This paper discusses the different choices made by the municipalities that have enacted the ordinances identified in the spreadsheets and identifies common practices as a means to delineate the decisions that need to be made in developing a model green building ordinance.
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.
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.