News & Announcements

• 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. 

Featured Publications

Upcoming Events & Video of Past Event

• Monday, September 18, at 6 PM at the NYC Bar Association, 42 West 44th Street. This NYC Climate Week event will cover the role of lawyers and bar associations in fighting climate change. Details to come soon. 
• Tuesday, September 19, at 7 - 8:15 PM at the Blue Gallery, 222 E. 46th Street (between 2nd and 3rd Avenues) as part of NYC Climate Week. This program, titled "Corporate Net Zero Pledges: Are Nature-Based Offsets Legitimate?" will be co-sponsored by the Sabin Center and Client Earth. Details to come soon. 

New on the Climate Law Blog

• New California Legislation Would Be a Major Step Forward for Climate Disclosure, by Michael B. Gerrard and Eric W. Orts, August 8, 2023
• Guest Blog: USACE and FEMA Promote Fossil Fuel Dependence and a Centralized Grid in Puerto Rico, by Ruth Santiago, August 2, 2023

Updates to the Climate Case Charts

Tenth Circuit Found that Bureau of Reclamation Adequately Responded to Concerns Regarding Future Climate Impacts in Review of Green River Basin Water Contract; Dissent Disagreed
 
In a split opinion, the Tenth Circuit Court of Appeals concluded that the Bureau of Reclamation (Reclamation) had taken a hard look at the impacts of a proposed water contract with the State of Utah that involved changing the point of diversion for water that Utah draws from the Green River Basin. Among the arguments rejected by the majority was a contention that Reclamation did not address scientific data and studies projecting that future climate warming was likely to leave the Colorado River system drier than in the past, increasing potential harms from the contract. Other federal agencies, including the U.S. Fish and Wildlife Service (FWS), had referenced in their comments on the environmental assessment three studies showing accelerating declines in river volumes in the future. Although the Tenth Circuit said that Reclamation’s response to these climate concerns “lacks clarity,” the appellate court found that the agency “sufficiently evaluated the minimal environmental effects of the proposed action.” The court said that “[w]hile Reclamation’s response to FWS’s comment could have been more robust, the record confirms that Reclamation adequately incorporated in its analysis the effects of a warming climate and the likelihood of changes in hydrology.” In the same vein, the Tenth Circuit also rejected an argument that Reclamation’s decision not to prepare an environmental impact statement (EIS) violated the National Environmental Policy Act in light of the other agencies’ comments, including comments criticizing Reclamation’s reliance on past hydrological data, which demonstrated a level of controversy that warranted an EIS. The dissenting judge disagreed with the majority’s conclusion that Reclamation had satisfied its duty to take a hard look at the effective of climate warming on the availability of water. The dissent found that Reclamation’s response to the FWS’s comment citing the three studies failed to respond to the actual concerns raised and failed to explain why the three studies were not relevant to assessing the contract’s impacts. The dissent also found that Reclamation failed to explain how the past data on which it relied “can serve as a surrogate for future drought scenarios.” Center for Biological Diversity v. U.S. Department of the Interior, No. 21-4098 (10th Cir. July 10, 2023) 

Court Dismissed French NGOs’ Claims Against Total Energy for Procedural Reasons Due to Lack of Standing and Lack of Strict Identity
 
In June 2019, French NGOs Notre Affaire à Tous, Sherpa, Zea, and Les Eco Maires, along with more than a dozen French local governments, announced the launch of a legal proceeding against the French oil company and carbon major Total by issuing a letter of formal notice (mise en demeure) to the company. Plaintiffs asserted that Total had three months to include adequate greenhouse gas emissions reduction targets in its latest “plan de vigilance” before they filed a lawsuit seeking a court order to force the company to comply with the law and the goals of the Paris Climate Agreement. In January 2020, the plaintiffs filed a complaint asking a Nanterre court to order Total to recognize the risks generated by its business activities and make its conduct consistent to limit global warming to 1.5°C. The complaint relies on the Law on the Duty of Vigilance and the duty of environmental vigilance arising out of the French Environmental Charter. The plaintiffs allege that Total did not provide enough detailed information in its vigilance plan for reducing its emissions, and the company is still not in line with international climate agreements.
 
Total did not respond to the merits and requested that the case be brought before the commercial court. In February 2021, the pre-trial judge rejected Total’s objection of incompetence and confirmed the jurisdiction of the judicial court. The judge considered that the NGOs have, as “non-traders,” a right of option, which they exercise at their convenience, between the judicial court and the commercial court. In November 2021, the Versailles Court of Appeal confirmed the jurisdiction of the Nanterre judicial court to settle the dispute. The decision is based on the exclusive jurisdiction of certain courts of law in matters of cessation and compensation for ecological damage. In July 2022, the City of New York intervened in support of the plaintiffs in the current litigation through an intervention volontaire accessoire. The City of New York based its intervention on its significant interest in engaging—locally and globally—in efforts to mitigate climate change, also because of the severe damages and risks this phenomenon causes to the City.
 
On July 6, 2023, the pre-trial judge dismissed the preventive lawsuit for procedural reasons. The Paris first instance court refused to examine the impact of TotalEnergies’ activities on climate change. The judge deemed the lack of strict identity between the demands in the formal notice demands and summons as an inadmissibility ground. In addition, the judge believed the plaintiff had no standing concerning climate change since it is a worldwide issue. Notre Affaire à Tous and Others v. Total (Nanterre District Court, France)