Field Reports

Field Reports are original and timely articles of legal scholarship that provide commentary or analysis on developments in the field of environmental law in a concise and accessible format.

A Divided Court Decides the Future of Demand Response: Oral Argument of FERC v. Electric Power Supply Association

By: Anthony Fares 5th December, 2015 In May 2014, the D.C. Circuit held, by a vote of 2-1, that the Federal Energy Regulatory Commission’s (“FERC”) Order 745 governing demand response resources in the wholesale energy market exceeded FERC’s authority under the Federal Power Act and was arbitrary and capricious under the Administrative Procedure Act. FERC, alongside three aggregators of electricity consumers and two parties representing customers of wholesale market operators, petitioned for certiorari. I attended oral argument on October 14, 2015; having seen the attorneys argue and the Justices react to their arguments, I gained a unique perspective on this case. This Field Report will present a brief background of the relevant facts and law, analyze the arguments presented in court, and predict how the U.S. Supreme Court will decide the case.

On Thin Ice: Will the International Court of Justice’s Ruling in Australia v. Japan: New Zealand Intervening End Japan’s Lethal Whaling in the Antarctic?

By: Julia Bedell 7th October, 2015 In March 2014, the International Court of Justice (the “ICJ”) declared that Japan’s whaling activity in the Antarctic did not satisfy the scientific exemption to a global whaling moratorium and ordered Japan to cease its current operations. Japan complied with the ICJ’s ruling and ended its expedition for that year; however, it also revealed a new scientific research program in November 2014 to resume whaling in the Antarctic. The International Whaling Commission (“IWC”) in June 2015 rejected Japan’s new proposal, citing that the planned lethal research continues to violate international regulations. It is not clear how Japan will respond to this recent rejection. The best-case scenario would be for Japan not to conduct any lethal whaling in the Antarctic until such whaling is approved by the IWC. However, because international whaling agreements are self-regulating, neither the ICJ nor other countries will directly be able […]

The Curbside Commons: Parking and Property in Portland, Oregon

By: Solomon Rotstein 21st April, 2015 Long-heralded as a “green” city1 with an almost-mythical quality of life,2 Portland, Oregon, unsurprisingly, is inscribing concerns over climate change into the very fabric of its land use planning. By 2035, city planners hope that eighty percent of Portlanders will live within a “complete neighborhood,” defined as one in which all essential goods and services are available within a twenty minute walk from a resident’s home. Planning documents expressly cite concerns over GHG emissions as a rationale for this vision. Parking is the “terminal”7 of the very car-based transportation system whose negative environmental effects the complete neighborhood attempts to mitigate. An examination of Portland’s minimum off-street parking requirements and on-street parking allocation regimes leads to the following conclusions: (1) although reducing or eliminating minimum off-street parking requirements has had little measurable effect on car ownership and use, the long-term effects of these policies remain […]

Finding Fault: Induced Earthquake Liability and Regulation

By: Emery Gullickson Richards 1st April, 2015 Man-made earthquakes have followed the hydraulic fracturing boom into the twenty-first century. In recent years, operators have hydraulically fractured more than 100,000 wells in the U.S. In tandem with the current increase in unconventional oil and gas production in the U.S., the number of earthquakes in the central and eastern parts of the country has increased dramatically: more than 300 earthquakes above a magnitude 3.0 occurred in the three years from 2010 to 2012, compared with an average rate of 21 events per year from 1967 to 2000. This Report will survey ways in which state regulation and various doctrines of common law liability23 address the risk of induced seismicity in five jurisdictions: Arkansas, Colorado, Ohio, Oklahoma, and Texas. Ohio’s regime merits special emphasis for having both the most robust regulatory scheme for preventing induced earthquakes and a well-developed and nuanced body of […]

Bridge (Loan) Over Troubled Water

By: David Ullman 13th March, 2015 On September 16, 2014, the federal Environmental Protection Agency (“EPA”) rejected the vast majority of a low- cost loan request from the administration of New York State Governor Andrew Cuomo to help finance a replacement for the aging Tappan Zee Bridge across the Hudson River approximately 25 miles north of midtown Manhattan. The decision was hailed by environmental advocates who had argued that the federal funding, authorized by a 1987 amendment to the landmark Clean Water Act (“CWA”), should be reserved for “genuine environmentally beneficial projects” such as those financing municipal wastewater facilities and improving water quality. The federal rejection of $481.8 million in funding was also notable in that the full $510.9 million request had been approved by the agency responsible for managing the revolving loan fund, the New York State Environmental Facilities Corporation (“EFC”). New York State has maintained its position that […]

Green Energy and Green Banks: Governance Policies on Climate Change

By: Anthony Fares 11th January, 2015 This Field Report addresses the major topics covered by the Governance Policies on Climate Change Panel at the 10th Annual Columbia University Energy Symposium, held on November 21st, 2014. Panelists included Farrukh Khan, Senior Manager & Head of Climate Finance at the United Nations Executive Office of the Secretary-General; Jean-Philippe Brisson, a partner at Latham & Watkins and Co-Chair of its Air-Quality and Climate Change Practice; and Andrew Darrell, Chief of Strategy, U.S. Climate, & Energy and New York Regional Director at the Environmental Defense Fund. Sara F. Tjossem, a senior lecturer in Environmental Science & Policy at Columbia’s School of International and Public Affairs, moderated the panel. These leaders in environmental law and policy focused their discussion on state, national, and international implementation of cap-and-trade, and considered how to fund sustainable development in both the developed and developing worlds.

Should Universities and Pension Funds Divest from Fossil Fuel Stocks?

By: Gregg Badichek 7th January, 2015 The campaign encouraging shareholding entities to divest their holdings and funds from the stocks of fossil fuel companies has grown from a loosely affiliated grassroots confederation into a national—arguably global—movement deserving of major media coverage. It targets universities, pension funds, foundations, and religious institutions, among other groups. In the realm of university campaigns, students and occasionally alumni typically aim to pressure the school’s fiduciaries to divest for political or moral reasons. It is against this background that the Sabin Center for Climate Change Law at Columbia University hosted a panel at Columbia Law School on Monday, November 24, 2014. The event, moderated by Professor Michael Gerrard, a renowned environmental lawyer and Director of the Sabin Center, featured both proponents and opponents of divestment. The guiding question was deceptively simple, and served as the event’s title: Should Universities and Pension Funds Divest from Fossil Fuel […]

The Environmental Threat of Cuba’s Deep Water Exploratory Drilling Under the Embargo

By: Leo Oppenheimer 21st December, 2014 For the past decade, Cuba has permitted drilling offshore exploratory wells in the North Cuban Basin, just 60 miles from the United States’ coastline. As the Deepwater Horizon disaster made clear, offshore exploratory drilling can go disastrously wrong and the environmental consequences of a spill can be devastating. Unfortunately, the Cuban Embargo is creating several obstacles to working with Cuba to avert and respond to drilling related disasters. The scope of the environmental threat created by the Embargo is alarming. A spill in Cuban waters could have drastic impacts on fisheries, coastal tourism, recreation, and natural resources in both Cuba and the United States for decades. The purpose of this preliminary excerpt is to expose to the legal community some of the challenges created by the Embargo in the hopes of stimulating dialogue on this pressing issue.

Hot Air Rises Through the Courts

By: Rees Alexander and Elizabeth Ewing 3rd June, 2014 The next environmental case to be decided by the Supreme Court involves a dispute with colossal consequence. In Utility Air Regulatory Group v. EPA, the U.S. Environmental Protection Agency has argued that the challenged rules are necessary to combat global climate change, which has been called the “most pressing environmental issue of our time.” Meanwhile, several states have argued that the EPA’s interpretation require the total number of annual permit applications to multiply by over 400-fold and would cost the public and private sectors over $193 billion in just two and a half years.

Conflict in the Air? Federalism, the Clean Air Act, and Arkansas’s Act 1302

By: Christian D. Petrangelo 13th December, 2013 Air emissions regulation is on the rise in North America and throughout the world. And increasing regulatory activity inevitably breeds conflict. In the United States, this conflict often occurs between the federal government and the states. Consider Arkansas’s Act 1302, which became law on April 18, 2013,6 and prohibits the Arkansas Department of Environmental Quality (ADEQ) from measuring air quality impacts from criteria pollutants with computerized modeling during the preconstruction review of certain new and modified stationary sources.7 Specifically, Act 1302 prevents ADEQ from using air dispersion modeling unless: (1) applied to new or modified sources subject to the Clean Air Act’s (CAA’s) Prevention of Significant Deterioration (PSD or attainment) program; (2) in fulfillment of federal National Ambient Air Quality Standard (NAAQS) obligations under a current or future Nonattainment State Implementation Plan (SIP) or NAAQS SIP; or (3) the owner/operator of the source […]

The “Lone Grid” State: Texas as the Ideal Location for State-Level Climate Regulation

By: James D. Friedland 13th December, 2013 Given the current state of national politics, it is highly unlikely that the United States Congress will pass comprehensive climate legislation any time soon. In the meantime, that inaction has relegated American climate policy to the states by default.1 Under the federal system, states serve as “laboratories of Democracy,” not just because each state has the freedom to make its own choices, but also because each state is inherently different and therefore experiments with different solutions to the same challenges. As this Field Report explores, these differences between states can have surprising implications, especially for greenhouse gas (GHG) regulation. Part I of this Field Report explains how the “leakage” of emissions facilitated by interstate electrical infrastructure can undermine state-level carbon regulations—unless states account for emissions from imported electricity. Part II describes how the dormant Commerce Clause impedes state-level regulation of interstate electric imports. […]

The Regional Greenhouse Gas Initiative: Winners and Losers

By: Marc Legrand 24th April, 2013 Created in 2009, the Regional Greenhouse Gas Initiative (“RGGI”) was the first mandatory carbon cap and trade regime in the United States.’ It regulates energy producers within member states Connecticut, Delaware, Massachusetts, Maryland, Maine, New Hampshire, New York, Rhode Island, and Vermont.’ The program places a cap on the total amount of carbon dioxide produced by fossil fuel-fired power plants of twenty-five megawatts and above.’ These producers must purchase carbon allowances at quarterly auctions, and are awarded a partial offset for implementing certain measures that reduce greenhouse gas emissions.4 RGGI is structured to operate in two phases. From 2009 to 2014, the cap will remain fixed at 165 million short tons of carbon dioxide emitted per year. From 2015 to 2018, the cap will be reduced by 2.5% each year for a total 10% reduction by 2018.’ The nine RGGI states are currently undertaking […]

Nanoparticles: Regulating a Tiny Problem with Huge Risks

By: Kirill Lebedev 23rd April, 2013 The continuing advancement of nanotechnology represents a tremendous opportunity for society because of the unique traits that nanoscale materials possess.’ Unfortunately, the same physical traits that give nanotechnology its economic and scientific value also make it a potentially dangerous emerging form of pollution that is particularly difficult to regulate under current law. After discussing the properties of nanoparticles and the current, problematic legal framework surrounding their environmental regulation, I will explore an alternative regulatory regime that could prove to be more successful in confronting the environmental risk posed by nanoparticles.

5th Circuit Reverses Itself on Hurricane Katrina Liability Lawsuit

By: Willis Hon 22nd April, 2013 The Fifth Circuit Court of Appeals recently reversed an earlier ruling by holding that the Army Corp of Engineers (“the Corps”) is not liable for damages against private individuals arising out of the Corps’s management of a shipping canal called the Mississippi River Gulf Outlet (“MRGO”) during and after Hurricane Katrina in 2005. This unusual move by the three-judge panel reverses some of the liability issues that may have arisen from its initial ruling. Although the same three-judge panel wrote the new opinion, little is known about why the panel has reversed itself. This surprising turn-around, which happened over the course of a mere six months, can be explained as an attempt by the panel to bring its opinion back into consistency with the Fifth Circuit’s case law around the Federal Tort Claims Act (“FTCA”). This Field Report provides background on the MRGO and […]

Field Notes from the Superstorm Sandy Catastrophe

By: Elizabeth Burleson 8th January 2013   I.  Introduction Climate justice has many synergistic and sometimes competing dimensions.  Superstorm Sandy struck a strategically important city in a strategically important country within days of a strategically important election.[1]  Irrespective of the degree to which climate change contributes to any given weather event, climate change has an aggregate effect of increasing the need for effective disaster response.  This essay argues that prioritizing human rights and environment in the context of energy, climate, and water decision making offers a best practice model for climate mitigation and adaptive resilience. While the world’s attention has focused on Sandy’s $60 billion impact in the United States,[2] it is important to recognize that the multidimensional fallout of increasingly destructive climate disruptions is devastating for front-line communities around the world as well.  Energy and water infrastructure disruptions impact human security.  For such countries as Haiti, compounded disaster responses […]