Fossil Fuels

Climate Change, FERC, and Natural Gas Pipelines: The Legal Basis for Considering Greenhouse Gas Emissions Under Section 7 of the Natural Gas Act, Romany Webb (May 2020)

As the federal agency charged with overseeing the interstate transportation of natural gas, the Federal Energy Regulatory Commission (FERC) has recently faced growing criticism over its approval of new pipelines. Critics have lambasted FERC for failing to adequately consider the climate change impacts of pipeline development, particularly the greenhouse gas emissions associated with “upstream” natural gas production and “downstream” use. The D.C. Circuit recently weighed in, holding that the National Environmental Policy Act requires consideration of downstream greenhouse gas emissions, at least in some circumstances. The precise scope of that requirement continues to be debated before FERC, in the courts, and among scholars. While recognizing the importance of that debate, this Article approaches the issue from a different perspective, contending that the Natural Gas Act establishes an independent requirement for FERC to consider climate change impacts, including upstream or downstream greenhouse gas emissions.

Holding Fossil Fuel Companies Accountable for their Contribution to Climate Change: Where Does the Law Stand? Michael Burger and Jessica Wentz (November 2018)

In 2017 and 2018, state and local governments across the United States launched a wave of litigation seeking to hold fossil fuel companies liable for damages caused by climate change. The basic argument underpinning these suits is that these companies knowingly contributed to climate change by extracting and selling fossil fuels, obscuring the science of climate change, and fighting policies aimed at mitigating climate change – and consequently they should therefore be held accountable for some of the adaptation costs incurred by governments. The plaintiffs are pursuing multiple state law legal theories: public nuisance, private nuisance, negligence, trespass, failure to warn, and design defect, among others.

Thus far, several cases have been removed to federal courts and two federal judges have held that the cases could not proceed because judicial resolution of the claims would violate separate of powers principles. In this paper, we discuss the prospects for the remaining cases, and in particular, whether other judges might also conclude that the courts are not the appropriate forums for addressing these issues.

Policy Readiness for Offshore Carbon Dioxide Storage in the Northeast, Michael Gerrard and Romany Webb (June 2017)

Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered (“carbon capture and storage” or “CCS”).

Research is currently being undertaken into the possibility of injecting carbon dioxide into the seabed. One study, involving researchers from Columbia’s Lamont-Doherty Earth Observatory, aims to identify possible injection sites in the seabed along the northeast coast of the U.S. It is anticipated that, following identification of suitable sites, a demonstration project will be undertaken to assess the feasibility of offshore CCS. This paper outlines key regulatory requirements for the demonstration project and any subsequent commercial operations.

A Mitigation-Based Rationale for Incorporating a Climate Change Impacts Fee into the Federal Coal Leasing Program, Michael Burger (September 2016)

This paper describes the legal and policy rationale for imposing a fee on federal coal that reflects the costs of the climate change impacts generated by that coal. It notes that the federal government has a duty to mitigate climate impacts from the federal coal leasing program, and that the Department of Interior (“Interior”) and the Bureau of Land Management (“BLM”) have ample authority to impose a climate change impacts fee on coal leases as a form of compensatory mitigation for those coal leases. The paper also discusses technical issues that should be considered when assessing the effectiveness of this mitigation option, such as what metrics should be used to establish an appropriate fee and how a fee might work with carbon sequestration efforts and other emissions offsets.

Will Greenhouse Gas Rules Prohibit New Coal Power Plants?, Ethan I. Strell & Christine A. Fazio (October 2013)

On September 21, 2013, the EPA issued a revised proposed rule that would limit carbon dioxide (CO2) emissions from new fossil fuel-fired power plants.  The re-proposal was intended to address concerns about the first proposal from last year, which was widely viewed as prohibiting in practice any new coal power plants from being built in the United States.  However, the re-proposal, like the first proposal, is receiving significant criticism by industry and elected officials in states that depend on coal, because new coal plants will not be able to meet the proposed limits unless they install costly and commercially untested carbon capture and storage technology.

Carbon Capture and Storage Policy in China, Yan Gu (October 2013)

Given China’s projected growth and its likely continued reliance on coal for the foreseeable future, CCUS may prove a critical strategy for controlling China’s carbon emissions. This paper first collects government policies that impact or support CCUS technology research and project deployment. The paper also summarizes several existing laws that may prove relevant for the regulation of CCUS, in an effort to understand their potential applicability in regulating future CCUS activities. Finally, the paper examines several of the most prominent international collaborative efforts underway in China.

NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports, Elizabeth Sheargold & Smita Walavalkar (August 2013)

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government.  In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA).  This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Hydraulic Fracturing Litigation Digest, Smita Walavalkar (Jan 2013)

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government.  In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA).  This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

All fossil fuel-related publications are available here.