Just a few weeks ago, Federal Judge William Alsup ruled that claims brought by San Francisco and Oakland against certain large oil companies belonged in federal court, because they raise issues of federal common law. Last week, in a similar law suit asserting similar claims, Judge Vince Chhabria remanded the case to state court. Why? Because there is no federal common law applicable to such climate-related claims. … More
Category Archives: Climate Response
Governor Baker has sent some mixed messages to the environmental community in his first term. After promising during the campaign to increase environmental spending to 1% of the state budget, he’s made essentially no progress whatsoever. More recently, the administration’s selection of Northern Pass to provide renewable energy under the so-called “83D” procurement was panned by pretty much everyone who is neither a member of the administration nor a resident of the Sovereign Nation of Eversource.… More
Yesterday, the 9th Circuit rejected the Trump administration’s request for a writ of mandamus ordering the trial court to dismiss litigation brought by 21 children alleging that the government’s failure to address climate change had violated their constitutional rights. It appears that the plaintiffs will get an opportunity to prove their claims.
It’s important to remember that this opinion is not about the merits. … More
Earlier this week, Judge William Alsup denied a motion by Oakland and San Francisco to remand their public nuisance claims against some of the world’s largest fossil fuel producers to state court. However, I’m not sure that this is a victory for the oil companies. This might be more of a “be careful what you wish for” scenario.
Earlier this week, the 9th Circuit Court of Appeals reversed a District Court decision and reinstated the National Marine Fisheries Service’s decision to list the Arctic ringed seal as threatened under the Endangered Species Act. The decision was not a surprise, because the 9th Circuit had already affirmed NMFS’s decision to list the bearded seal on identical grounds.
What caught my eye was this language in the opinion – actually a quote from the bearded seal decision.… More
While EPA continues to go backwards on climate, evidence continues to mount that investors are only going to get more aggressive. There were two developments worth noting this month.
First, Bloomberg Markets reported that BlackRock, which seems increasingly willing to put its mouth where its money is, has sent letters to 120 companies, telling them to report climate risks in a manner consistent with the Financial Stability Board’s Task Force on Climate-related Financial Disclosures. … More
The Washington Post reported this week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it. The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report. Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.… More
Last week, the government released the Climate Science Special Report, the first volume of the Fourth National Climate Assessment. It makes grim reading – or perhaps more accurately, grim reaper – reading. Here’s what we might call the executive summary of the Executive Summary. First, the bottom line:
This assessment concludes, based on extensive evidence, that it is extremely likely that human activities, especially emissions of greenhouse gases,… More
Yesterday, Judge Mark Wolf dismissed part of the Conservation Law Foundation’s claims in its litigation against ExxonMobil concerning ExxonMobil’s Everett Terminal facility. The opinion is both interesting and pleasurably concise – a rare combination!
Judge Wolf found that CLF had credibly alleged that the Terminal is violating its NPDES permit. Importantly, he also found that CLF stated that there is:
substantial risk”… More
China will soon unveil a mandatory cap-and-trade credit program for electric cars, starting the countdown for carmakers to be in compliance with stricter rules on emissions and fuel economy.
It’s pretty well known that China is not the world’s most transparent government. Thus, I won’t fully believe until I see it. On the other hand, it does seem pretty clear that China is intent on cracking down on motor vehicle pollution. … More
Earlier this month, State Street Global Advisors joined the chorus of money managers urging corporate boards, particularly those in “high-impact sectors” – meaning “oil and gas, utilities and mining” – to do a better job reporting risks related to climate change. SSGA’s recent “Perspective on Effective Climate Change Disclosure” is a serious document. To put it in formal technical jargon, SSGA whacks the heck out of most companies in high-impact sectors,… More
In February, I posted about the formation of the Climate Leadership Council and its push for what it calls its “Carbon Dividend” plan. In essence, it’s a gradually increasing carbon tax. The plan would be revenue neutral, with the proceeds being returned to taxpayers. Thus, the name. I loved the idea and I still love it. I particularly love that the tax starts at $40/ton – that’s a serious number.… More
Democratic Attorneys General have continued their efforts to combat the Trump administration’s attempts to roll back environmental regulations developed under the Obama administration in two recent actions. Thirteen AGs, including Massachusetts AG Maura Healey, sent a letter last week to Scott Pruitt, the Administrator of the Environmental Protection Agency, threatening legal action if the agency takes steps to weaken or delay the greenhouse gas emissions standards that were established in 2012 for cars and light-duty trucks for model years 2022-2025.… More
On May 31, shareholders at Exxon Mobil Corp. (“ExxonMobil”) voted in favor of a climate change resolution asking the company to publish an annual report on the business impact of measures designed to limit global temperature increases to 2 degrees centigrade, the target set by the Paris Agreement.
The non-binding resolution passed with more than 62% of the votes cast. Specifically, the resolution asks that,… More
In March, I noted BlackRock’s increasing concern over climate. One element of its statement was “potential support for shareholder resolutions on climate risk”, where “management’s response to our prior engagement has been inadequate. Turns out that they meant it.
Last November, the District Court of Oregon denied the motion of the United States to dismiss claims that the United States had violated a public trust obligation it owes to US citizens to protect the atmosphere from climate change. Not surprisingly, the government sought interlocutory appeal. On Monday, Magistrate Judge Thomas Coffin issued a Finding and Recommendation that the request for interlocutory appeal be denied. … More
Two related items about climate change resilience and adaptation caught my eye this week. First, the American Academy of Actuaries issued a report on “The National Flood Insurance Program: Challenges and Solutions.” Those wild and crazy actuaries at the AAA certainly have a gift for understatement:
Increased flooding due to higher sea levels can only increase the amount of loss from storms absent expensive investment in coastal defenses.… More
Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal. Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules. There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More
In an interesting study just published in the Proceedings of the National Academy of Sciences, the authors predict that climate change will have a more significant impact on peak energy demand than had previously been understood. They conclude that, in a business as usual case, peak demand will increase 18%, leading to a need to spend $180B (in current dollars) to meet that increased peak demand.
The authors acknowledge that their estimates are based on current infrastructure and that the development of energy storage could play a role in mitigating the need for new generation sources to meet peak demand.… More
Does MassDEP Have Authority to Regulate Electric Generating Emissions Under Section 3(d) of the GWSA? I’m Not So Sure.
As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain. However, that does not mean that MassDEP can simply take the easy way out. After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain,… More
When the Supreme Judicial Court ruled in Kain that § 3(d) of the Global Warming Solutions act requires MassDEP to promulgate emission limits for multiple source categories, requiring declining annual emissions enforceable in Massachusetts, I sympathized with the difficult task MassDEP was given. To DEP’s credit, they are working hard, determined to get draft regulations out by mid-December.
I still sympathize, but evidence to date only demonstrates further that Kain was a mistake and it’s forcing a waste of resources at MassDEP and a misallocation of attention if we really want to attain further significant GHG reductions in Massachusetts. … More
FWS Goes Back to Square One On Listing the Wolverine. It’s Not Going to Be Any Easier This Time Around.
As we noted in this space in April, Judge Dana Christensen vacated the Fish and Wildlife Service’s decision to withdraw its proposed listing of a distinct population segment of the North American wolverine as threatened under the ESA. Bowing to the inevitable, the FWS has now published in the Federal Register a formal acknowledgement that the Court’s vacatur of the withdrawal of the proposed listing returns the situation to the status quo.… More
Yesterday, the Energy Information Administration reported that “Energy-related CO2 emissions for first six months of 2016 are lowest since 1991.” The EIA gave three reasons for the drop in CO2 emissions.
- Mild weather. Of course, if global warming is our solution to reducing CO2 emissions, we better come up with something that works in the summer as well as the winter.…
As an MIT grad and loyal resident (Go Sox!), I’m always happy to see stories about Massachusetts’ role in the innovation economy. Last week, news arrived of more innovation in Massachusetts – this time on the legal front. CLF sued Exxon Mobil for not adapting its Everett storage terminal to harden it against the effects of climate change.
When RGGI was first implemented, I heard Ian Bowles, then Secretary of Energy and Environmental Affairs in Massachusetts, say more than once that the purpose of RGGI wasn’t really to reduce greenhouse gas emissions or jump start the clean energy economy. Instead, the goal was much more modest; it was simply to demonstrate that a trading regime could work. The RGGI states were to serve as a model,… More
Last Friday, Governor Baker issued Executive Order 569, “Establishing an Integrated Climate Change Strategy for the Commonwealth.” EO 569 will advance climate policy in Massachusetts in a number of important ways. It also leaves much to be accomplished by MassDEP. Here are the highlights:
- EOEEA and MassDOT are instructed to work with other New England and Northeastern states to develop regional policies to reduce GHG emissions from the transportation sector.…
Massachusetts Legislature Enacts Significant Energy Bill in Support of Offshore Wind and Hydro Procurement, Storage and Transmission
Late last night, the Massachusetts legislature enacted House Bill 4568, an act to promote energy diversity (the “Act”). Overall, the Act marks a compromise between the House’s original procurement-only legislation and the Senate’s more comprehensive “omnibus” bill. It is expected Massachusetts Governor Charlie Baker will sign the legislation shortly. After that, regulations will be required to be implemented and other regulatory actions will need to be taken by Massachusetts’ Department of Public Utilities,… More
On June 15, 2016, Exxon sued Massachusetts AG Maura Healey in federal court in Texas, seeking to bar the enforcement of AG Healey’s April 19, 2016 civil investigative demand, issued pursuant to M.G.L. c. 93A, the Commonwealth’s unfair and deceptive practice statute. Under c. 93A, § 6, the AG may issue investigative demands “whenever [s]he believes a person has engaged in or is engaging in any method, act or practice” prohibited by c.… More
Last Friday, the Senate Committee on Ways and Means released its version of the energy bill that passed the House earlier this month. Whereas the House bill would require distribution companies to procure 1,200 MW of offshore wind power by 2027 and 9,450,000 MWH of hydroelectric power by 2022, the Senate’s version would require 2,000 MW of offshore wind by 2030 and 12,450,000 MWH of “clean energy generation” by 2018.… More
The City of Boston has just released its “Climate Projections Consensus.” It’s not a pretty picture. Here are the lowlights:
- Even with “moderate” emissions reductions, see level rise is likely to be between 1.5 feet and 2.5 feet by 2070.
- The number of “extreme precipitation” events has been increasing and that increase will continue.…
This week a draft of the long-awaited Massachusetts energy bill was reported out of the Joint Committee on Telecommunications, Utilities and Energy. The bill would require the Commonwealth’s distribution companies to competitively solicit long-term, fifteen- to twenty-year contracts for large-scale offshore wind and hydroelectric power. Notably absent from the bill are provisions addressing resources such as solar, onshore wind, nuclear, energy storage, and energy efficiency.
The bill seeks to jumpstart the development of offshore wind in federal lease areas by directing distribution companies to enter into contracts for 1,200 MW of offshore wind power before July 1,… More
The Global Warming Solutions Act Requires MassDEP to Promulgate Declining Annual GHG Emissions Limits for Multiple Sources: Yikes!
On Tuesday, the Supreme Judicial Court ruled that MassDEP had violated the Global Warming Solutions Act by failing
To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emissions limits for each year,… More
A Substantive Due Process Right to Climate Change Regulation? What’s a Lonely Apostle of Judicial Restraint To Do?
Late last week, Magistrate Judge Thomas Coffin concluded that the most recent public trust case, which seeks an injunction requiring the United States to take actions to reduce atmospheric CO2 concentrations to 350 parts per million by 2100, should not be dismissed.
On Monday, the 9th Circuit reversed a district court decision that rejected the critical habitat designated by the Fish and Wildlife Service for protection of the polar bear, which was listed as threatened in 2008. The case is largely a straightforward application of accepted Endangered Species Act principles, but does make a few important points.
Kamala Harris Puts Exxon Under Her Microscope: California AG Reportedly Has Launched Review of Oil Giant’s Statements On Climate Change
Students of history know that fighting a two front war is a hazard to be avoided. According to the L.A. Times, however, that is precisely the dilemma that now faces Exxon Mobil: dual investigations from attorneys general on each coast of the United States.
Several sources are reporting that California Attorney General Kamala Harris’ office is examining what Exxon knew about the science of climate change compared with what the company told investors. … More
Earlier this week, Massachusetts released its updated Massachusetts Clean Energy and Climate Plan for 2020. The headline for the press release was “Massachusetts on Track to Meet 25% Greenhouse Gas Reduction Target for 2020”. The slightly more nuanced version is that we can do it, but only with a large dose of Canadian hydropower.
While that’s the main take-away, it really is a useful report,… More
So COP21 resulted in an agreement. What’s a poor in-the-trenches lawyer to make of it? I think it’s pretty clearly a major step forward and reflects much more substantive progress than might have been expected. For a very helpful summary as to why the Paris Agreement was a success, check out Rob Stavins’s post. As good as Rob’s summary is, Elizabeth Kolbert in the New Yorker (subscription required) had a slightly more concise explanation why the Paris Agreement is a good thing:
It changes the presumption that carbon emissions will continue to grow to the presumption that they must soon start coming down.… More
Does the Impact of Climate Change on Financial Markets Have Anything In Common with Same-Sex Marriage?
A few months ago, I asked whether climate change nuisance and public trust litigation might have something in common with litigation challenging bans on same-sex marriage. The idea was that both types of litigation seemed hopeless at the start and received very frosty receptions from the courts. However, in the case of same-sex marriage, plaintiffs kept plugging away and, much sooner than most people expected, a tipping point was reached. … More
The fourth installment of our Paris climate change negotiations tracker is available.
Some progress seems to be occurring, but it’s certainly not obvious that COP21 will result in an agreement sufficient to ensure that it will result in meeting a “below 2°C” objective.
Click here to download the report: