Climate Change Attorney Blog
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A newly released study has predicted that unchecked climate change could result in a significant increase in sea level rise. As reported in the media, a new study has concluded that previous estimates of sea level rise underestimated the potential contribution from the Antarctic ice sheet, should climate change continue without action to limit its impacts. The new predictions view the increase in sea level rise being increased by a factor of two.

Simply stated:

“Antarctica has the potential to contribute more than a metre of sea-level rise by 2100 and more than 15 metres by 2500, if emissions continue unabated.”

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On December 3, 2015, a bill was introduced in the U.S. House of Representatives proposing to relate the ability of the EPA to regulate carbon dioxide emissions, from fossil fuel-fired electric generating plants, to certification of specific actions by other countries to reduce carbon dioxide emissions. H.R. 4169 links new regulations of CO2 emissions from those power plants to implementation of regulations by other countries that would reduce worldwide CO2 emissions (not including US. emissions) by eighty (80%) percent.

Not only does the bill prevent the EPA from trying to unilaterally take action to reduce CO2 emissions, the bill appears to effectively preempt U.S. participation in any international agreement on reduction of CO2, unless it meets the standards set by Congress.  One question is whether the bill would violate Article II, section 2 of the United States Constitution which provides the President “…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”.  If the President reaches an international agreement on CO2 emissions that has a different standard for reduction, does Congress have the authority to block implementation of such an agreement through an Act such as H.R. 4169?

The full text of the bill reads as follows:

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In a report released last week by the United Nations it was found that 90% of major disasters over the last twenty years were weather related. In the summary of  the report released on November 25, 2015 it was stated  those “major disasters have been caused by 6,457 recorded floods, storms, heatwaves, droughts and other weather-related events.”

The head of UN Office for Disaster Risk Reduction (UNISDR) noted that there are a number of drivers that increase the risks of these weather events, including greenhouse gas emissions.

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Two recent studies outline the potentially devastating economic impacts of  unchecked climate change. In a recent study released by Citigroup, the economic effects of action on climate change versus inaction on climate change were compared, with the conclusion that inaction brought much greater potential economic impacts. This week the Journal Nature issued a report concluding inaction on climate change could result in a 23% reduction in global income by 2100.

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The California Legislature is currently considering two bills that would have a significant impact on the consumption of energy in that State. Aimed at reducing emissions the two proposals, if enacted, would be unprecedented.

The first bill, the Clean Energy and Pollution Reduction Act of 2015, proposes to reduce the use of oil by 50% and increase the use of sources of renewable energy by 50% within the next 15 years.

The Second bill, the California Global Warming Solutions Act, seeks to amend a 2006 statute by advancing the date for certain reductions in emissions. For example, the new bill proposes an interim limit on greenhouse gases (GHG) of 40% below 1990 levels by 2030 with a total reduction of 80% below 1990 GHG levels by 2050.

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Recent legislation has directed the New York Department of Environmental Conservation (“DEC”) to prepare regulations addressing projections of sea level rise, along with adaptation strategies. As a part of that process the DEC held a series of meetings last week in order address issues outlined by the DEC in its published Summary for Stakeholders.

As noted by the DEC:

“It is important to compare outlays for adaptation measures with the costs of doing nothing, and to take into account the importance of climate change losses to society.

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A bill has been submitted in Congress that if adopted will completely alter Federal energy policies and restrict or eliminate the ability of federal agencies to regulate activities that have potentially significant environmental impacts.. The so called “American Energy Renaissance Act of 2015” addresses everything from fracking, the Keystone XL Pipeline, drilling in the outer continental shelf, tribal lands and drilling for oil in Alaska to renewable fuel, the budget deficit and regulation of greenhouse gases.

The proposed act also restricts judicial review of actions pursuant to the bill, creates short statutes of limitation to seek judicial review, short periods for action by the applicable agencies to process permit applications and prohibits recovery of legal fees for challenges to actions.

While there are many aspects of the bill that would impact Climate Change policies, the sections below repealing renewable fuel standards,and preventing the EPA from adopting regulations that regulate greenhouse gases seem to be the provisions that most directly reject the concept of Climate Change. Moreover the bill proposes the “term ‘air pollutant’ does not include carbon dioxide, water vapor, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride.”

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FEMA has issued new guidelines, effective as of March 2016, for evaluating State plans to reduce or eliminate risks from natural hazards. The new Guide establishes the new standards, now including climate change, that must be met by states in planning for reduction of the risks from natural disasters. Significantly, funding to the states can be impacted by the failure to meet these guidelines.

Referring to the Intergovernmental Panel on Climate Change Fourth Assessment Report, the Guide notes that “the challenge posed by climate change such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future”.

The Guide also requires that states assess their current capabilities to address risk and indicate how those capabilities may be strengthened. The plans must establish hazard mitigation goals and how the states plan to meet those goals. These should include everything from land use regulations to utilities, transportation and emergency planning.

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On January 30,2015 the President issued an Executive Order fixing new standards for construction within a floodplain. The new Flood Risk Management Standard amends Executive Order 11988 of May 24, 1977.

The new standards impact projects where agencies ” guarantee, approve, regulate, or insure any financial transaction which is related to an area located in an area subject to the base flood”.

The old order established floodplains as areas with at a minimum of a one percent or greater annual chance of flooding. The new rule is broader and more stringent stating:

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The most recent UN IPCC Report on Climate Change has been released. The full Report, issued on November 1, 2014, has a number of dire predictions, if no action is taken. These are highlighted in an additional document labeled “Headline Statements” which include:

“Surface temperature is projected to rise over the 21st century under all assessed emission scenarios. It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise….

Many aspects of climate change and associated impacts will continue for centuries, even if anthropogenic emissions of greenhouse gases are stopped. The risks of abrupt or irreversible changes increase as the magnitude of the warming increases….