U.S. Climate Litigation in the Age of Trump: Full Term

From beginning to end, the Trump administration pursued an agenda of climate deregulation. The administration aimed a portfolio of actions at weakening federal climate protections and promoting fossil fuels.1 The executive branch did so by aiming to revise and rescind all major Obama-era agency rules to regulate greenhouse gas emissions, leasing public lands for fossil fuel development, attempting to curtail climate impact consideration in National Environmental Policy Act and Endangered Species Act reviews, and withdrawing energy efficiency measures, among other climate deregulation actions.2 Collectively, this effort served to advance the view that humans are not causing serious climate change and that environmental regulations confer many costs and few benefits.3 Litigants responded and interacted with the administration’s climate deregulation agenda by filing hundreds of lawsuits in jurisdictions across the country. This analysis takes stock of 378 lawsuits during the Trump era where climate change was material to the case and the case implicated issues of federal law and/or federal policy. The vast majority of these suits, 89%, aimed to strengthen climate protection or weaken climate deregulation efforts. The other 11% sought to bolster climate deregulation efforts

ITLOS Advisory Opinion on Climate Change: Summary of Briefs and Statements Submitted to the Tribunal

This report provides a summary of the briefs and statements submitted to the International Tribunal for the Law of the Sea (ITLOS) in response to the Co-Chairs of Commission of Small Island States (COSIS)’ request for an advisory opinion on climate change-related legal questions. The central issue before the ITLOS is whether State Parties to UNCLOS have specific obligations regarding the prevention, reduction, and control of marine environmental pollution stemming from climate change, as well as the protection and preservation of the marine environment concerning climate change impacts. While States and civil society organizations have put forward a variety of arguments in their briefs and statements, they mostly relate to three pivotal aspects of international maritime law: (i) ITLOS’ jurisdiction and ability to issue an advisory opinion on climate change, (ii) the definition of marine pollution under UNCLOS, and (iii) the responsibilities of States in the context of climate change under the UNCLOS. Authors: Ahmed Mohammed Abdelsalam, Sabah Ahmed, Maria Jose Alarcon, Irene Antonopoulos, Jorge Alejandro Carrillo Bañuelos, Valeria Berros, Juan Sebastián Castellanos, Asteropi Chatzinikola-Iliopoulos, Moumita Das Gupta, Antoine De Spiegeleir, Fernand Guevara Mekongo Mballa, Millie John-Pierre, Isabella Kiechle, Jan-Baptist Lemaire, Sol Meckievi, Milagros Mutsios-Ramsay, Yumeno Grace Nishikawa, Natalia Urzola, Ademola Oluborode Jegede, Zunaida Moosa Wadiwal

Legal Considerations for Atmospheric Methane Removal

Scientists are beginning to investigate atmospheric methane removal approaches, which would accelerate the conversion of methane to a less radiatively potent form or physically remove methane from the atmosphere and store it elsewhere. Developing and, if appropriate, deploying atmospheric methane removal approaches will require an understanding of relevant legal considerations and governing structures that could impact whether, when, where, and how specific projects take place. This paper examines the treatment of atmospheric methane removal approaches under international and U.S. domestic law. The paper focuses on five atmospheric methane removal approaches that are currently being investigated: (1) atmospheric oxidation enhancement, (2) ecosystem uptake enhancement, (3) surface treatments, (4) methane reactors, and (5) methane concentrators. Scientists often divide the five approaches into two broad categories based on whether they involve “open” systems (i.e., approaches 1 to 3 above) or “closed” ones (i.e., approaches 4 and 5). This paper adopts that categorization but also distinguishes between approaches based on other factors that are legally significant. The paper does not discuss techniques for reducing methane emissions (e.g., flaring or other techniques that address high-concentration streams) and does not cover hydrogen emissions, even though they can affect atmospheric methane levels. Instead, this paper focuses on the removal of methane from the atmosphere and related legal issues under international law and domestic U.S. law, with a particular focus on U.S. federal law. There is no specific legal framework governing atmospheric methane removal activities either at the international level or domestically in the United States. However, a variety of general environmental and other U.S. and international laws may apply to field research and deployment. The applicability of different laws will depend on a range of factors, including the specific nature of the activities (e.g., whether they involve open or closed systems), the purpose for which they are conducted (e.g., whether they involve research or commercial activities), where they take place (e.g., on land or in the ocean), and the nature and location of their impacts

Executive Actions to Ensure Safe and Responsible Ocean Carbon Dioxide Removal Research in the United States

This paper presents recommended actions that federal agencies could take, under existing law, to ensure safe and responsible permitting and regulation of ocean carbon dioxide removal (CDR) research in U.S. waters. Controlled field trials and other in-ocean research is critical to improve scientific and societal understanding of ocean CDR techniques that could help the U.S. reach its climate goals. That could raise a host of legal issues, however. Existing legal frameworks were not designed to regulate ocean CDR, and federal agencies have yet to fully explain how decades-old environmental laws will be applied to a new set of activities. This paper recommends several actions federal agencies could take to provide greater legal clarity and advance safe and responsible permitting and regulation of ocean CDR. They include actions aimed at enhancing interagency coordination, improving environmental review and stakeholder engagement, and clearly defining the application of existing law to ocean CDR activities

Developing Model Federal Legislation to Advance Safe and Responsible Ocean Carbon Dioxide Removal Research in the United States

This model federal legislation aims to advance safe and responsible ocean carbon dioxide removal (CDR) research in U.S. waters. Controlled field trials and other in-ocean research is critical to improve scientific and societal understanding of CDR techniques that could help the U.S. reach its climate goals. However, existing legal frameworks were not designed to regulate ocean CDR and, in some cases, unnecessarily or inappropriately restrict needed research. The purpose of this proposed model legislation is to establish clear and efficient permitting regime for in-ocean CDR research. At the same time, the model legislation builds in consultation, monitoring, and other safeguards to ensure research occurs in a scientifically-sound manner and minimizes potential risks to the environment and communities

Removing Methane via Atmospheric Oxidation Enhancement: The Legal Framework

To achieve the Paris Agreement’s goal of limiting the increase in global average temperatures to “well below 2 degrees Celsius,” and ideally 1.5 degrees Celsius, above pre-industrial levels, global greenhouse gas (“GHG”) emissions must reach net zero in the second half of the century. The global community is not currently on track to achieve net zero emissions. In fact, with the exception of a slight dip during the Covid-19 pandemic, emissions have risen steadily in recent years. This, together with the increasingly visible impacts of climate change, has prompted growing interest in the possibility of removing GHGs directly from the atmosphere. While GHG removal cannot substitute for rapid and deep emissions cuts, it could help to offset residual emissions from hard-to-abate sectors and potentially even reduce the total atmospheric GHG load by delivering net negative emissions. To date, efforts to advance GHG removal have primarily focused on developing carbon dioxide removal (“CDR”) techniques, but another GHG removal approach — atmospheric methane removal (“AMR”) — is now also beginning to receive attention. One AMR technique is atmospheric oxidation enhancement (“AOE”), which aims to accelerate the natural oxidation process whereby hydroxyl and chlorine radicals react with atmospheric methane, converting it into carbon dioxide and other by-products. This process could deliver significant climate benefits because methane is a particularly potent GHG, trapping 86 times more heat in the Earth’s atmosphere than carbon dioxide in the first 20 years after it is released and 34 times more heat than carbon dioxide over 100 years (on a ton-for-ton basis). However, AOE is still in the very early stages of development, and significantly more research is required to fully evaluate its efficacy and impacts (both positive and negative). This paper, Atmospheric Oxidation Enhancement: The Legal Framework, and the two accompanying case studies, explore the international and domestic (U.S.) laws governing methane removal via AOE. Parts 1 and 2 introduce the concept of AOE, explain proposed AOE techniques, and discuss the climate and non-climate benefits and risks that AOE may present. Part 3 then discusses key factors that will influence how AOE projects are regulated, both at the international level and domestically in the United States. With respect to the latter, Part 3 examines circumstances under which the United States may assert jurisdiction over AOE projects and introduces the different bodies of U.S. law — arising at the federal, tribal, state, and local levels — that might apply to such projects. The remainder of the paper then assesses the laws and regulations that might govern AOE projects: Part 4 identifies international agreements and rules of customary international law that might affect whether, when, where, and how AOE projects are conducted, and Part 5 explores applicable U.S. law that might apply to such projects, with a particular focus on federal environmental law. The paper is accompanied by two case studies that highlight permitting, reporting, and other legal requirements that could impact two hypothetical AOE projects: one involving the dispersal of AOE aerosol from onshore towers located in coastal areas, and another conducted by adding iron-bearing additives to marine fuels used in ocean-going vessels

Permitting Seaweed Cultivation for Carbon Sequestration in California: Barriers and Recommendations

Interest is growing in seaweed cultivation and sequestration as a carbon dioxide removal strategy. This white paper explores the barriers to seaweed permitting for carbon sequestration in California, including a complex, costly, and time-consuming lease and permitting process. Other states in the U.S., namely Maine and Alaska, have permitting systems designed to be more supportive of seaweed cultivation. This paper describes the legal framework for seaweed cultivation permitting in California and discusses the permitting systems in Maine and Alaska. The paper then explores possible reforms to streamline California’s permitting process, while maintaining appropriate environmental and other safeguards

Removing Carbon Dioxide Through Ocean Alkalinity Enhancement and Seaweed Cultivation: Legal Challenges and Opportunities

This paper explores two ocean-based carbon dioxide removal strategies – ocean alkalinity enhancement and seaweed cultivation. Ocean alkalinity enhancement involves adding alkalinity to ocean waters, either by discharging alkaline rocks or through an electrochemical process, which increases ocean pH levels and thereby enables greater uptake of carbon dioxide, as well as reducing the adverse impacts of ocean acidification. Seaweed cultivation involves the growing of kelp and other macroalgae to store carbon in biomass, which can then either be used to replace more greenhouse gas-intensive products or sequestered. This paper also examines the international and U.S. legal frameworks that apply to ocean alkalinity enhancement and seaweed cultivation. Depending on where they occur, such activities may be subject to international, national, state, and/or local jurisdiction. Under international law, countries typically have jurisdiction over activities within 200 nautical miles of their coastline. In the U.S., coastal states typically have primary authority over areas within three nautical miles of the coast, and the federal government controls U.S. waters further offshore