Feed Info - Climate Change Attorney Blog

For the first time in what is believed to be 3 million years, carbon dioxide levels were recorded this week at 400 ppm on top of the 11,000 foot Mauna Loa mountain in Hawaii. As noted by National Geographic, the last time CO2 was at those levels:

" the Earth then was in the final stage of a prolonged greenhouse epoch, and CO2 concentrations were on their way down. This time, 400 ppm is a milepost on a far more rapid uphill climb toward an uncertain climate future."

-Steven Silverberg

NASA released a study predicting that, with increased global warming, areas prone to heavy rains will see increases in rainfall while areas prone to drought will experience even less rainfall. The the announcement of the study released on May 3, 2013 notes:

"The models project for every 1 degree Fahrenheit of carbon dioxide-induced warming, heavy rainfall will increase globally by 3.9 percent and light rain will increase globally by 1 percent. However, total global rainfall is not projected to change much because moderate rainfall will decrease globally by 1.4 percent....Some regions outside the tropics may have no rainfall at all. The models also projected for every degree Fahrenheit of warming, the length of periods with no rain will increase globally by 2.6 percent. "

-Steven Silverberg

A study released on March 31, 2013 projects a significant increase in Arctic tree cover and resultant impacts on climate change into the 2050s. As reported in Science Daily, a study appearing in Nature Climate Change Projects a 50% increase in wooded areas. The increase in tree cover is projected to absorb greater heat and therefore add further to global warming.

-Steven Silverberg

On March 26, 2013 the Obama Administration released what it calls the "first nationwide strategy to help public and private decision makers address the impacts that climate change is having on natural resources and the people and economies that depend on them." In a press release the Climate Adaptation Strategy for Fish, Wildlife and Plants is referred to as providing "a roadmap of key steps needed over the next five years to reduce the current and expected impacts of climate change."

The strategy sets for seven steps for safeguarding fish, wildlife and plants as:

" Conserve habitat to support healthy fish, wildlife, and plant populations and ecosystem functions;

Manage species and habitats to protect ecosystem functions and provide sustainable commercial, subsistence, recreational and cultural use;

Enhance capacity for effective management;

Support adaptive management through integrated observation and monitoring and use of decision support tools;

Increase knowledge and information on impacts and responses of fish, wildlife, and plants;

Increase awareness and motivate action to safeguard fish, wildlife, and plants; and

Reduce non-climate stressors to help fish, wildlife, plants, and ecosystems adapt"

The process in developing the strategy was led by the U.S. Fish and Wildlife Service, other Departments of the U.S. Government and the New York DEC, representing state governments.

-Steven Silverberg

The State Department released the Draft Supplemental Environmental Impact Statement (SEIS) for the controversial Keystone XL Pipeline last week. Along with the full report is a summary of the history of the project.

The discussion of the impacts of climate change on the proposed pipeline, while acknowledging significant ongoing changes in temperature and weather patterns, concluded in section 4.14.2.2:

"In summer, warmer summer temperatures, increased number of hot days, increased number of consecutive hot days and longer summers are predicted, which could lead to impacts associated with heat stress and wildfire risks. Keystone has confirmed that the proposed Project is designed in accordance with U.S. Department of Transportation (USDOT) regulations and the PHMSA 57 Special Conditions (Appendix B), and that these design standards are sufficient to accommodate an increased number of hot days or consecutive hot days. Keystone has also stated that because the proposed pipeline would be buried to at least 4 feet of cover to the top of the pipe, it would be below most surface temperature impacts, including wild fires and frequent freezing and thawing (Keystone 2012)."

The level of emissions from the pipeline during operations are described in section 4.12.3.2:

"The total annual GHG emissions from the operation of the pipeline, as shown above, amount to 3.19 million metric tons per year of CO2e2. The annual CO2e emissions from the proposed Project is equivalent to CO2e emissions from approximately 626,000 passenger vehicles operating for one year, or 398,000 homes using electricity for one year.3 Recommended GHG mitigation measures during proposed Project operation are listed in Section 4.12.4.2, Greenhouse Gases."

Section 4.12.4.2 recommendations for mitigation of GHGs during operations are as follows:

"During proposed Project operations, the following mitigation measures are recommended to reduce GHG emissions to the atmosphere:
• Ensure that all pumps are maintained in accordance with manufacturer’s recommendations;
• Consider use of high efficient pump specifications;
• Consider arrangement of pumps to optimize efficiency; and
• Consider the purchase of green electricity from the grid."

There is a 45 day public comment period. Comments may be sent to keystonecomments@state.gov

-Steven Silverberg

NASA has released a report showing severe impacts on a large area of the Amazon rain forest resulting from the effects of climate change. The report notes that a 2005 drought, likely resulting from the same weather patterns that brought severe weather to the Southern United States, severely impacted 270,000 square miles of the forest with an even larger area having less severe impacts.

The report found that the impacts of the drought were more long lasting than anticipated. As a result, the forest had not fully recovered from the 2005 drought when another drought hit in 2010 that impacted nearly half the forest. NASA notes

"The drought rate in Amazonia during the past decade is unprecedented over the past century. In addition to the two major droughts in 2005 and 2010, the area has experienced several localized mini-droughts in recent years. Observations from ground stations show that rainfall over the southern Amazon rainforest declined by almost 3.2 percent per year in the period from 1970 to 1998. Climate analyses for the period from 1995 to 2005 show a steady decline in water availability for plants in the region. Together, these data suggest a decade of moderate water stress led up to the 2005 drought, helping trigger the large-scale forest damage seen following the 2005 drought."

-Steven M. Silverberg

The National Climate Assessment and Development Advisory Committee has released a draft climate assessment report for public comment. The Draft Report discusses the various aspects of climate change and specific impacts on the various regions of the United States.

The Executive Summary provides an overview of the report with cross references to topics contained in specific chapters.

Noting human contribution to climate change the Executive Summary states:

"Human-induced climate change means much more than just hotter weather. Increases in ocean and freshwater temperatures, frost-free days, and heavy downpours have all been documented.Sea level has risen, and there have been large reductions in snow-cover extent, glaciers, permafrost, and sea ice. Winter storms along the west coast and the coast of New England have increased slightly in frequency and intensity. These changes and other climatic changes have affected and will continue to affect human health, water supply, agriculture, transportation, energy, and many other aspects of society (Ch. 2,3,4,5,6,10,12,16,20,24,25)."

The Executive Summary goes on to note:
" As climate change and its impacts are becoming more prevalent, Americans face choices. As a result of past emissions of heat-trapping gases, some amount of additional climate change and related impacts is now unavoidable. This is due to the long-lived nature of many of these gases, the amount of heat absorbed and retained by the oceans, and other responses within the climate system. However, beyond the next few decades, the amount of climate change will still largely be determined by choices society makes about emissions. Lower emissions mean less future warming and less severe impacts; higher emissions would mean more warming and more severe impacts. The choices about emissions pathway fall into a category of response options usually referred to as “mitigation” – ways to reduce the amount and speed of future climate change by reducing emissions of heat-trapping gases (Ch. 2, 26, 27)."

For those who are interested, there is a link in order to create an account and comment on the draft.

-Steven M. Silverberg

In the Environmental Research Letter released this week in IOP Science, a new study concludes that recent projections by the Intergovernmental Panel on Climate Change (IPCC) underestimate actual sea level rise. The study concludes: " the rise in CO2 concentration and global temperature has continued to closely match the projections over the past five years, while sea level continues to rise faster than anticipated. The latter suggests that the 21st Century sea-level projections of the last two IPCC reports may be systematically biased low. Further support for this concern is provided by the fact that the ice sheets in Greenland and Antarctica are increasingly losing mass (Rignot et al 2011, Van den Broeke et al 2011), while those IPCC projections assumed that Antarctica will gain enough mass in future to largely compensate mass losses from Greenland (see figure 10.33 in Meehl et al (2007))."

California has issued its third assessment of the Impacts and potential responses to Climate Change. "Our Changing Climate 2012" issued by the California Climate Change Center looks at "adaptation options in regional case studies and offers insights into regulatory, legal, socioeconomic and other barriers to adaptation so that they can be addressed effectively at the local and state levels."

Significantly the study notes there is a range of potential changes in climate over the next century but "study findings show that the climate choices society makes today and in the coming years can have a profound impact on future conditions."

The study goes on to find:

"By 2050, California is projected to warm by approximately 2.7°F above 2000 averages, a threefold increase in the rate of warming over the last century.
• By 2100, average temperatures could increase by 4.1– 8.6°F, depending on emissions levels.
• Springtime warming — a critical influence on snowmelt — will be particularly pronounced.
• Summer temperatures will rise more than winter temperatures, and the increases will be greater in inland California, compared to the coast.
• Heat waves will be more frequent, hotter, and longer. There will be fewer extremely cold nights."

The study then goes on to analyze the impacts on public health, energy resources, coastal areas, etc. It notes the need to examine both mitigation and adaptation to changes that cannot be avoided: "the latest climate science makes clear that State, national and global efforts to mitigate climate change must be accelerated to limit global warming to levels that do not endanger basic life-support systems and human well-being. Success in mitigation will keep climate change within the bounds that allow ecosystems and society to adapt without major disruptions."

-Steven Silverberg

New York adopted a law in July that provides for local implementation of tax exemptions for improvements to property, in excess of ten thousand dollars, that obtain LEED(R) certification or meet a similar standard, based upon adoption of a local law implementing such a provision. To be eligible the construction must commence in or after January 2013 and the Statute provides for exemption, on a sliding scale, over ten years.

Chapter 188 of the Laws of 2012, which is the new section 470 of the New York Real Property Tax Law reads:

§ 470. Exemption for improvements to real property meeting certif-
ication standards for green buildings. 1. Construction of improvements
to real property initiated on or after the first day of January, two
thousand thirteen, meeting LEED certification standards for green build-
ings as provided in this section, the green building initiative's green
globes rating system, the American National Standards Institute, or
substantially equivalent standards for certification using a similar
program for green buildings as determined by the municipal corporation,
shall be exempt from taxation by any municipal corporation in which such
property is located to the extent provided in this section, provided the
governing board of such municipal corporation, after conducting a public
hearing, adopts a local law, ordinance or resolution providing therefor.
2. Such real property, or portion thereof, which is certified under a
LEED certification standard for the categories of certified, silver,
gold or platinum as meeting green building standards, as determined by a
LEED accredited professional shall be exempt as provided below for the
respective percentages provided that a copy of the LEED certification
for a qualified category is filed with the assessor's office and is
approved by the assessor as meeting the requirements of this section and
the municipal corporation's local law, ordinance or resolution. Such
exemption shall be to the extent of any increase in assessed value
resulting from the construction or reconstruction of a property meeting
LEED certification.
LEED EXEMPTION
YEAR CERTIFIED/SILVER GOLD PLATINUM
1 100% 100% 100%
2 100% 100% 100%
3 100% 100% 100%
4 80% 100% 100%
5 60% 80% 100%
6 40% 60% 100%
7 20% 40% 80%
8 0% 20% 60%
9 0% 0% 40%
10 0% 0% 20%

3. No such exemption shall be granted unless: (a) such construction of
improvements was commenced on or after the first day of January, two
thousand thirteen, or such later date as may be specified by local law;
(b) the value of such construction exceeds the sum of ten thousand
dollars; and (c) such construction is documented by a building permit,
if required, for the improvements, or other appropriate documentation as
required by the assessor. For purposes of this section the term
"construction of improvements" shall not include ordinary maintenance
and repairs.
4. If the assessor is satisfied that the applicant is entitled to an
exemption pursuant to this section, he or she shall approve the applica-
tion and such real property shall thereafter be exempt from taxation by
the municipal corporation as provided in this section commencing with
the assessment roll prepared after the taxable status date. The assessed
value of any exemption granted pursuant to this section shall be entered
by the assessor on the assessment roll with the taxable property, with
the amount of the exemption shown in a separate column.

-Steven M. Silverberg

The U.S. Court of Appeals for the District of Columbia Circuit issued a decision this week rejecting a challenge to a series of EPA reguations aimed at curtailing GHG emissions from both vehicles and stationary sources. In Coalition for Responsible Regulation, Inc. v. Environmental Protection Agency, the Court summarized its decision as follows:

"Following the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that greenhouse gases are an “air pollutant” subject to regulation under the Clean Air Act (CAA)—the Environmental Protection Agency promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.
Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. But for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions."

In addressing the claim by the Plaintiffs that the EPA's Endangerment Finding relative to GHG's has uncertainties as to cause and effect, the Court discussed the nature of such findings and regulations noting:

"Rather, they contend that the record evidences too much uncertainty to support that judgment. But the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding. If a statute is “precautionary in nature” and “designed to protect the public health,” and the relevant evidence is “difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge,” EPA need not provide “rigorous step-by-step proof of cause and effect” to support an endangerment finding. Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C. Cir. 1976). As we have stated before, “Awaiting certainty will often allow for only reactive, not preventive, regulation.”'

The Court then conducted a detailed analysis of the arguments against the suject regulations, rejecting all of the challenges.

-Steven Silverberg

The U. S. Geological Survey issued a press release today stating that sea level rise along a 600 mile stretch of the U.S. Atlantic coast Is at a pace three to four times that of other areas of the world. The press release states the published article in "Nature Climate Change" concludes that in the last 22 years: "...sea-level rise in the 600-mile stretch of coastal zone from Cape Hatteras N.C. to north of Boston, Mass. -- coined a "hotspot" by scientists -- has increased 2 - 3.7 millimeters per year; the global increase over the same period was 0.6 – 1.0 millimeter per year."

The press release notes that "the increases in sea level rise rate that have already occurred in the hotspot will yield increases in sea level of 8 to 11.4 inches by 2100. This regional sea level increase would be in addition to components of global sea level rise."

-Steven Silverberg

In a study released this week, UCLA predicts significant warming in Los Angeles and the surrounding area by mid-century. The study "shows projected climate changes down to the neighborhood level..."

Among the study's conclusions:

"Southern Californians should expect slightly warmer winters and springs but much warmer summers and falls, with more frequent heat waves. Temperatures now seen only on the seven hottest days of the year in each region will occur two to six times as often. The number of days when the temperature will climb above 95 degrees will increase two to four times, depending on the location. Those days will roughly double on the coast, triple in downtown Los Angeles and Pasadena, and quadruple in Woodland Hills. In Palm Springs, the number of extremely hot days will increase from an annual average of 75 to roughly 120."

-Steven Silverberg

The government of Scotland announced the formation of a Climate Justice Fund to aid less industrialized countries deal with the impacts of climate change.

In a press release from the government, Professor Alan Miller, Chair of the Scottish Human Rights Commission is quoted as saying:

"Climate justice is a key issue for many of our sister institutions around the world, especially in developing countries where the impacts of climate change are being felt right now, and in very harsh terms, by some of the world’s most vulnerable people. Climate change impacts on rights to life, livelihoods and the ways of life of many millions of people in the developing world, and is the greatest challenge to our planet this century.

The people who have contributed least to the problem are suffering the most. This situation is manifestly unfair and cannot continue. The Climate Justice Fund is a welcome step forward, and should result in Scotland opening up new ways to share technology, experience and expertise, as well as funding."

-Steven Silverberg

Last week the Virginia Supreme Court upheld a lower court ruling that an insurance carrier had no liability to cover its insured in an action claiming the insured's activities had contributed to damages resulting from the effects of climate change. In AES Corporation v Steadfast Insurance Co., the Virginia Supreme Court noted that the action resulted from a lawsuit by a Native Alaskan Village against several companies, including AES, claiming they damaged "the village by causing global warming through emission of greenhouse gases".

In holding that the insurance policy did not provide coverage for the claims made against AES, the Court found:

"Under the CGL policies, Steadfast would not be liable because AES’s acts as alleged in the complaint were intentional and the consequences of those acts are alleged by Kivalina to be not merely foreseeable, but natural or probable. Where the harmful consequences of an act are alleged to have been not just possible, but the natural or probable consequences of an intentional act, choosing to perform the act deliberately, even if in ignorance of that fact, does not make the resulting injury an “accident” even when the complaint alleges that such action was negligent.

Kivalina asserts that the deleterious results of emitting carbon dioxide and greenhouse gases are something that AES knew or should have known about. If an insured knew or should have known that certain results were the natural or probable consequences of intentional acts or omissions, there is no “occurrence” within the meaning of a CGL policy."

As more similar actions are likely in various jurisdictions, it will be interesting to see how the case law in this area develops.

-Steven Silverberg