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On June 8, the Sabin Center launched the CLCPA Scoping Plan Tracker -- a new tool that monitors the implementation of recommendations in the Scoping Plan for New York's Climate Leadership & Community Protection Act.
Read the blog by Climate Justice Fellow Andrea Nishi, who led the creation of the tracker, here.
The CLCPA Scoping Plan Tracker can be accessed here.
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Read the blog by Senior Fellow Matthew Eisenson here.
Full report is available here.
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The Sabin Center is hiring for the following positions:
- Associate Research Scholar: We are seeking an Associate Research Scholar as part of our Renewable Energy Legal Defense Initiative. Details about the position are available here. Apply here.
- Smart Surfaces Fellow: We are seeking a Smart Surfaces Fellow to help advance the Cities Climate Law Initiative's collaboration with the Smart Surfaces Coalition. Details about the position are available here. Apply here.
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The Sabin Center and the Columbia Center on Sustainable Investment are jointly hiring for the following positions, as part of a Climate Law & Finance initiative:
- Senior Legal Researcher: We are seeking a Researcher to support a new initiative on climate law and finance. The researcher will work collaboratively with CCSI's and the Sabin Center’s Leadership and Research Staff to analyze the interrelated legal, finance, and policy pathways critical to achieving global climate goals and facilitating the energy transition.
- Senior Staff Associate: We are seeking a Staff Associate who will execute the Centers’ applied research agenda on the role of law and finance in addressing climate change and accelerating the energy transition.
More details about each position, minimum qualifications, and how to apply here.
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Upcoming Event & Videos of Past Events
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Date: Thursday, June 15, 2023
Time: 5:00 PM - 6:30 PM EDT
Register here
This event is co-organized by the Sabin Center and the Energy Innovation & Policy LLC
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On May 19, the Sabin Center hosted its biennial conference on "Key Environmental Issues in U.S. EPA Region 2", at Columbia Law School.
Watch the videos of each panel below.
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Panel 1: Climate and Air Pollution
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On May 22, the Sabin Center and Environmental Defense Fund hosted a webinar to discuss progress and next steps with the implementation of the Inflation Reduction Act (IRA), America’s biggest climate investment.
Watch the video below.
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New on the Climate Law Blog
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- The Slippery Notion of Boycotts in the Anti-ESG Movement, by Cynthia Hanawalt and Denise Hearn, June 14, 2023
- New York Home Buyers Deserve the Right to Know Their Flood Risk, by Michael Gerrard and Joel Scata, June 5, 2023
- Using Attribution Science to Evaluate the Effects of Oil and Gas Emissions on Endangered and Threatened Species, by Jessica Wentz, June 6, 2023
- Staff News: Isabel Tañedo Joins the Sabin Center as Assistant Director of Operations, May 30, 2023
- Inflation Reduction Act: Implementation Gaps for Local Governments & How to Close Them, by Amy Turner, May 25, 2023
- Third Department Upholds New York's Renewable Energy Siting Regulations, by Matthew Eisenson, May 24, 2023
- Reckoning with risk: Recent developments in climate and U.S. financial regulation, by Eleonor Dyan Garcia, May 19, 2023
- Rethinking the Willow Project: Did BLM Have Other Options?, by Romany Webb, May 10, 2023
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Updates to the Climate Case Charts
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Here are highlights of this month's climate litigation update. The full update is available here:
Montana Supreme Court Declined to Intervene in Youth Plaintiffs’ Constitutional Climate Case Against State Defendants; Trial Began on June 12
On May 23, 2023, a Montana trial court dismissed youth plaintiffs’ constitutional claims challenging Montana’s statutory State Energy Policy, which was repealed in March 2023, but denied the State defendants’ motion for summary judgment on the plaintiffs’ other constitutional claims. These remaining claims challenge a provision of the Montana Environmental Policy Act (MEPA) that precludes consideration of climate change in environmental reviews. In April 2023, another court held that the MEPA provision in fact required consideration of the impacts of greenhouse gas emissions on Montana, but several weeks later the State enacted a provision that explicitly prohibits consideration of greenhouse gases in MEPA reviews. A two-week trial began on June 12.
With respect to challenge to the State Energy Policy, the court concluded that dismissal without prejudice was appropriate based on redressability and prudential standing issues, given that the relief contemplated was limited to a declaratory judgment on the constitutionality of statutory provisions. Regarding the plaintiffs’ other claims, the trial court first found that the plaintiffs set forth specific facts to show that their claimed injuries from climate change were “concrete, particularized, and distinguishable from the public generally.” The court said it was not dispositive that other Montanans likely experience similar injuries. The court further found that the plaintiffs set forth specific facts to establish both that there was a “reasonably close causal relationship between the State’s permitting of fossil fuel activities under MEPA, [greenhouse gas] emissions, climate change, and Plaintiffs’ alleged injuries” and that the court could grant relief (i.e., an order striking down the MEPA provision that precludes consideration of climate change) that would redress the injuries. In addition, the court found that there were no prudential concerns that would prevent the court from striking down the MEPA provision. The court also rejected the State defendants’ arguments that interpreting the Montana Constitution’s right to a clean and healthful environment to include a right to a stable climate system would lead to absurd results and “open the floodgates” for private litigation. The court also found that there were no unnamed indispensable parties in the lawsuit, rejecting contentions regarding the suit’s impacts on permitting for fossil fuel-related activities. In addition, the court rejected the State defendants’ argument that the legislature, not the judiciary, should be the arbiter of the MEPA provision’s constitutionality. The court found that the MEPA provision “clearly implicates Plaintiffs’ fundamental right to a clean and healthful environment” and said that “[w]hether Plaintiffs can prove standing and whether the statute can withstand strict scrutiny will be determined after trial.” The court also denied the State defendants’ summary judgment on the plaintiffs’ equal protection claim and on their claims under the Montana Constitution’s right to seek safety, health, and happiness and public trust doctrine. Regarding the equal protection claim, the court said that whether climate change and the MEPA provision affect youths disproportionately would be determined at trial. The court’s decision identified the following material facts as in dispute: (1) whether plaintiffs’ injuries are mischaracterized or inaccurate; (2) whether Montana’s greenhouse emissions can be measured incrementally; (3) whether climate change impacts to Montana’s environment can be measured incrementally; (4) whether climate impacts and effects in Montana can be attributed to Montana’s fossil fuel activities; and (5) whether a favorable judgment will influence the State’s conduct and alleviate plaintiffs’ injuries or prevent further injury. Held v. State, No. CDV-2020-307 (Mont. Dist. Ct. May 23, 2023)
On June 6, 2023, the Montana Supreme Court denied the State defendants’ request for a writ of supervisory control over the trial court to reverse its denial of the State’s motion. The Montana Supreme Court also declined to stay the trial court proceedings. The State defendants argued that a trial was unnecessary because no material facts found at trial would change the case’s legal outcome and because the 2023 amendments to MEPA to explicitly exclude consideration of greenhouse gases in MEPA reviews had removed the language that the plaintiffs challenged. The Supreme Court noted that supervisory control is an “extraordinary remedy” that cannot be used to circumvent the appeal process. The Supreme Court found that the State defendants did not demonstrate that the MEPA amendments altered the plaintiffs’ allegations or the theory of their MEPA-related claim. The Supreme Court also found that the State defendants did not provide a reason why the district court’s ruling could not be reviewed on appeal. State v. Montana First Judicial District Court, No. OP 23-0311 (Mont. June 6, 2023)
Oregon Federal Court Allowed Juliana Plaintiffs to Amend Complaint to Rectify Deficiency Identified by Ninth Circuit
More than three years after the Ninth Circuit Court of Appeals held that the plaintiffs in Juliana v. United States lacked standing for their claims that federal defendants violated their constitutionally protected rights to a stable climate system capable of sustaining human life, the federal district court for the District of Oregon granted the plaintiffs’ motion to amend their complaint to attempt to cure what the district court characterized as “a narrow deficiency with plaintiffs’ pleadings on redressability.” The district court concluded that the Ninth Circuit’s mandate did not require the court “to shut the courthouse doors” on the plaintiffs where the plaintiffs cited intervening precedent and made new factual allegations. In particular, the plaintiffs cited a 2021 Supreme Court decision that held that judicial ability to “to effectuate a partial remedy” satisfies the redressability requirement for standing. The plaintiffs contended that their amended allegations demonstrated that relief under the Declaratory Judgment Act would provide sufficient partial redress of their climate change-related injuries. The plaintiffs also omitted relief that the Ninth Circuit found to be outside the scope of judicial authority, including a request for an order requiring the defendants to develop and implement a remedial plan. The district court found that the proposed amendments were not futile, concluding that “a declaration that federal defendants’ energy policies violate plaintiffs’ constitutional rights would itself be significant relief” and that such relief was “squarely within the constitutional and statutory power of Article III courts to grant.” The court therefore found “that the complaint can be saved by amendment.” In a separate opinion and order, the court dropped the plaintiff Earth Guardians from the action pursuant to Federal Rule of Civil Procedure 21 and dismissed its claims without prejudice, as Earth Guardians requested. The court denied the federal defendants’ motion for entry of final judgment against Earth Guardians pursuant to Rule 54(b). The court found that judgment under Rule 54(b) would not be proper because the claims of Earth Guardians and the youth plaintiffs were “logically related, both from a factual and legal standpoint.” Juliana v. United States, No. 6:15-cv-01517 (D. Or. June 1, 2023)
Colombian Constitutional Court Justices Asked to Decide Whether REDD+ Projects Violate Indigenous Groups’ Human Rights to Self-Determination and Cultural Integrity
On July 15, 2022, the Pirá Paraná Indigenous Council and the Association of Indigenous Traditional Authorities of the Pirá Paraná River (ACAIPI) filed a tutela asserting the violation of their fundamental and human rights to self-determination, cultural integrity, autonomous governing, and territory. Defendants in this case are private companies that are implementing REDD+ projects in the plaintiffs’ territory and the environmental authorities in charge of authorizing and monitoring the projects.
Plaintiffs argue that the REDD+ projects violate their fundamental and human rights as a result of (i) a lack of human rights due diligence by the private companies, and (ii) the failure of the government to protect their rights. Plaintiffs contend that all climate change mitigation and adaptation measures, projects, and programs must protect and ensure the enjoyment of Indigenous fundamental rights in their respective territories. Particularly, plaintiffs claim that the Colombian legal framework ought to incorporate human rights standards regarding the implementation of REDD+ projects to ensure mitigation measures that aim to protect the environment do not violate human rights. Likewise, plaintiffs assert that due diligence conducted by the private companies must include human rights standards, which was not the case. Plaintiffs argue that the private companies deliberatively ignored and excluded the Indigenous authorities.
The case was first heard by a judge, who rejected the plaintiffs’ arguments. The judge’s reasoning was based on the subsidiary nature of the tutela mechanism, which is an expedited procedure only available if regular mechanisms are inadequate to ensure the protection of the plaintiffs’ rights. The judge found that the plaintiffs had other judicial mechanisms to challenge the defendants’ actions and declared that the tutela was not adequate in this case. Plaintiffs filed an appeal and the Administrative Tribunal upheld the judge’s decision.
On April 28, 2023, the Colombian Constitutional Court (the Court) selected this case for review. The case will now be heard by the Court’s Justices, who will have the opportunity to study the REDD+ projects for the first time, in what could become a precedent for other carbon emission and climate change mitigation activities particularly regarding Indigenous communities’ rights. The Court deemed it important to provide a clear judicial guideline as to the way these and similar projects are being implemented as well as whether the tutela is the adequate mechanism to challenge the projects, especially with regard to Indigenous rights. Pirá Paraná Indigenous Council and Association of Indigenous Traditional Authorities of river Pirá Paraná “ACAIPI” v. Ministry of Environment and Sustainable Development and others (Constitutional Court, Colombia)
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Please send additional material for inclusion in the climate case charts to
margaret.barry@arnoldporter.com.
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