Hana Vizcarra

EPA's move this month to kill federal methane controls for oil and gas could do more than just make it easier for the greenhouse gas to enter the atmosphere. It could also make it harder for the agency to use the Clean Air Act to regulate in the future. That's because EPA's decision in mid-August to roll back Obama-era methane rules includes new guardrails on how EPA can use the Clean Air Act (Energywire, Aug. 14). Specifically, it asserts that before EPA can use the Clean Air Act to limit a new pollutant from a new source category — such as power plants, manufacturing or petroleum development — the agency first must prove that sector is a significant source of whatever pollutant EPA would regulate. The additional requirement — if it survives court challenges — could slow, or even deter, EPA rulemaking. That could prove especially true for regulation of greenhouse gases, where even high-emitting sectors in the United States supply a tiny percentage of the global atmosphere's load of carbon dioxide, methane or other gases. EPA has said it plans to issue proposed criteria later this year. "They're talking about providing regulatory certainty and providing a clearer framework, but they seem to be failing to consider that it could undermine the purpose of the Clean Air Act — that is to undermine its ability to protect public health and welfare and to continuously improve the country's air quality," said Hana Vizcarra, a staff attorney with the Harvard Law School Environmental and Energy Law Program. "It's an opportunity to not regulate." ...Vizcarra said the wording of the Trump administration's move on methane "follows their pattern of slicing and dicing their regulatory authorities" to justify deregulation. The rule deregulates transmission and storage — which were covered under the Obama rule — and employs an equation for climate damage done by methane that looks only at impacts within the United States. The intent is to support a cost-benefit analysis that doesn't demand tougher regulations, Vizcarra said.

EPA's rationale for its decision to stop directly regulating potent heat-trapping emissions from the oil and gas sector may contain fatal flaws that could cause the agency's new standards to stumble in court, legal experts say. The Trump administration last week finalized a pair of regulations aimed at rolling back the Obama administration's 2016 New Source Performance Standards controlling methane emissions from new and modified sources in the oil and gas industry (Climatewire, Aug. 14). Legal experts agree the agency's cost-benefit analysis justifying the rule change will be a likely target of litigation, particularly in light of a recent district court ruling striking down the Trump administration's approach to the social cost of methane, which puts a dollar figure on the harm caused by emissions of the greenhouse gas...The rule falls into the Trump administration's pattern of finding ways to limit the scope of agency powers under the Clean Air Act to regulate planet-warming gases in years to come, said Hana Vizcarra, a staff attorney at Harvard Law School's Environmental and Energy Law Program. "It breaks with prior interpretation of the Clean Air Act in order to take a stance that could limit the ability of EPA to regulate greenhouse gas emissions from any source in the future," Vizcarra said. EPA's about-face on its definition of what methane sources actually get regulated under the new rule — particularly its exclusion of transportation and storage facilities — is a potential point for litigation, said Romany Webb, a senior fellow at Columbia Law School's Sabin Center for Climate Change Law. "I think there are some really good arguments to be made that EPA has not adequately justified that re-definition of the listing category, which really kind of is completely opposite to the position it took both in 2011 and in 2016," she said.

Several policies that affect the west and the energy landscape here are back in the news, including proposed changes to the National Environmental Policy Act, the Bureau of Land Management Waste Prevention Rule, and the Great American Outdoors Act. On August 4, President Trump signed the Great American Outdoors Act into law. On July 29, three coalitions of environmental groups filed lawsuits challenging the final NEPA regulations. On July 29, the EPA made changes to how coal ash will be treated, including extending a deadline for discarding the waste in unlined ponds. On July 23, EPA the Nuclear Regulatory Commission signed a Memorandum of Understanding hoping to boost production of uranium. Hana Vizcarra, staff attorney at Harvard Law School's Environmental and Energy Law Program, spoke with Wyoming Public Radio's Cooper Mckim about why so much action is happening right now.

If climate change is not already impacting an attorney's legal practice it will inevitably do so in the future, affecting a wide range of legal areas from corporate disclosures to litigation over natural disasters and supply-chain disruption, a panel of experts said Thursday. The climate change law experts offered their insight during a virtual panel discussion at the American Bar Association's annual meeting Thursday on how lawyers' practices will be impacted by climate change. The panelists included Columbia Law School professor Michael Gerrard, Hogan Lovells partner Hilary Tompkins, Harvard Law School professor Hana Veselka Vizcarra and general counsel for General Electric's Environment, Health and Safety operations Roger Martella. "Climate change will affect your practice," Vizcarra said. "It's already impacting how we live our lives and how companies do business and when that happens it impacts the law." Vizcarra pointed to changes in corporate disclosure and risk management, with shifts in what corporations either voluntarily disclose to investors or must disclose to the U.S. Securities and Exchange Commission when it comes to issues like their environmental impact or climate change-related risks or liabilities they face. "It's not just a way for values investors to make an impact and encourage companies to do good in the world, but it's now really a part of what investors integrate into their analyses across the board," she said. And, it's not only relevant to securities law, she added, but climate change risks have also begun to impact how the financial sector evaluates assets and the condition of companies seeking financing.

A federal court ruling that rejected the Bureau of Land Management's rollback of Obama-era methane controls raises questions about whether the Trump administration is undermining its own rules by downplaying the economic impacts of climate change. A decision this month by District Judge Yvonne Gonzalez Rogers reinstated the Obama-era BLM waste prevention rule after determining that the Trump administration's interim social cost of methane was less scientifically rigorous than the version it was replacing. The Trump figure counts only the climate damages in the U.S. that stem from methane, a powerful greenhouse gas, rather than its effects globally. The result: Those effects are estimated to be 25 times smaller under Trump than Obama...But she said their success will likely depend on the court and on the details of each case. In the BLM case, the agency had already provided an analysis for the waste prevention rule that incorporated the Obama-era social cost of methane. So it fell to BLM to show why it had erred. "There's a heightened standard when you've already finalized a rule to really show why your decisionmaking in the prior rulemaking — why you're changing your mind as an agency. And they just didn't do that," said Hana Vizcarra, a staff attorney at the Environmental and Energy Law Program at Harvard Law School. A court might have afforded BLM more deference if it was issuing a new rule rather than seeking to rescind an old one, she said. Vizcarra said the California decision was an example of the Trump administration's track record of cutting corners in crafting its regulations, only to be rebuked by the courts.

A federal district judge’s decision striking down the Trump administration’s rollback of methane emissions standards could fuel other litigation over an obscure tool used to study the impacts of climate change. California Judge Yvonne Gonzalez Rogers last week rebuked the Bureau of Land Management for eliminating Obama-era restrictions on releases of the potent greenhouse gas from oil and gas infrastructure on public and tribal lands. Her opinion included a detailed assault on how the land agency used a metric called the social cost of methane, calling the approach “riddled with flaws.” Industry advocates say the judge improperly substituted her own judgment instead of deferring to the agency. But legal scholars expect litigants to use the decision to push for enhanced climate analysis in other federal decisions. “This decision will certainly be important as we work through litigation in other contexts,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program...Similar debates over the social cost of greenhouse gases—or about proper cost-benefit analysis more generally—are cropping up in litigation over the Trump administration’s decisions to undercut Obama-era targets for vehicle emissions, and constrain how the Environmental Protection Agency weighs the collateral benefits of air pollution rules. “It doesn’t bode well for some of their other rulemakings,” Vizcarra said of the Trump administration. District court decisions don’t create binding precedent for other courts, but they can be persuasive. What’s less clear, Vizcarra said, is whether the ruling will help climate advocates force agencies to use the social cost of carbon in the first place. The California court’s frustrations stemmed from the fact that the Obama administration used one approach, and the Trump administration used a very different one without adequate justification, she said.

The top attorneys for the District of Columbia and Minnesota last week launched major lawsuits against the oil and gas industry, adding to a growing swell of climate battles focused on consumer protection. Legal experts say climate litigators facing off against the fossil fuel industry's major players are getting more creative in their use of state statutes and common law, which could help them avoid prolonged procedural battles over whether the cases belong in state or federal court — a problem that has plagued local challengers seeking industry compensation for climate impacts. By strengthening their arguments for state venues, state challengers could move more quickly to the meat of their cases...These cases — and a similar lawsuit filed last year by Massachusetts Attorney General Maura Healey (D) — are distinct from climate nuisance lawsuits brought by cities, counties and one state that seek to hold oil and gas companies financially accountable for rising sea levels and other effects of climate change...Experts like Hana Vizcarra, staff attorney at Harvard Law School, said the states' consumer protection cases also move away from claims rooted in securities law. The New York attorney general's office last year lost its bid to hold Exxon accountable under the state's Martin Act, an anti-fraud law. "It's noticeable that there's been this common shift to consumer protection, but it's also not super surprising because nobody else has the Martin Act," Vizcarra said. "It's harder to bring securities fraud claims, and they're just really dependent on the state laws." Prohibitions against deceptive corporate practices are more widespread, she said. "You see those kinds of authorities in laws across the country in every state," Vizcarra said.

The Trump administration’s march to reshape federal environmental protection has gathered pace during the coronavirus pandemic, resulting in lighter regulation of America’s air and water. The two-pronged effort includes temporary measures aimed at fostering economic activity as well as permanent rule changes that are being pushed through in time to prevent Democrats — should they sweep November’s election — from using a little-known legislative tool to overturn them. “We’ve seen a sense of urgency in the first half of 2020 to get some of their higher-ranked items out the door,” said Hana Vizcarra, staff attorney at Harvard University’s Environmental and Energy Law Program...If Democrats were to keep control of the House and take back the Senate and the White House, they might be able to use the CRA to reverse some of the rules published by the Trump administration. Which regulations could be considered remains unclear, because it is not known how many “legislative days” there will be this year, given the time lost to the pandemic. According to George Washington University’s Regulatory Studies Center, the 60-day clock probably started ticking in late May, but might not begin until July or August. Harvard’s Ms Vizcarra estimates that of the environmental rules finalised in 2020, at least four were probably completed early enough to be safe from review under the CRA...The EPA said mercury emissions would still be regulated under Clean Air Act standards. However, the day it withdrew the “appropriate and necessary” finding, the entire regulation was challenged in a lawsuit filed by a coal company, Westmoreland Mining Holdings.  “The standards are still in place but they’ve lost this pretty major legal underpinning. And so of course, that makes them vulnerable to legal challenges,” said Laura Bloomer at Harvard.

As the nation deals with civil unrest and the global pandemic, the Trump administration quietly continues to roll back environmental regulations. Trump came into office promising to rid the nation of what he called unnecessary and burdensome rules on the fossil fuel industry and others. Environmental regulation trackers like those run by Harvard and Columbia Law Schools find that he’s made good on that promise, so far dismantling 100 major climate and environmental policies. The Trump administration has weakened efforts to reduce climate-changing carbon emissions from power plants, rolled back mileage standards on cars and trucks, reduced Clean Water Act protections, and shrunk the size of two national monuments by millions of acres. We've examined many of these moves on this podcast since Trump took office in January 2017. Today, Trump on Earth’s Julie Grant talks with Hana Vizcarra staff attorney at Harvard Law School's Environmental and Energy Law Program, who helps run its environmental rollback tracker to get an idea of the scope of this legacy.

The Trump administration has expressed little concern over climate change as it pursues its goal of American dominance in the energy market. Federal judges say it should be concerned. At least six times since President Donald Trump took office, courts have rebuked the Interior Department for selling drilling rights or advancing oil projects without adequately considering the consequences to a warming planet. The decisions have jeopardized high-stakes oil development plans across more than a million acres of federal land...The latest climate-related defeat came in May, when Montana-based U.S. District Court Judge Brian Morris tossed out 287 oil and gas leases spanning 145,063 acres in the state more than two years after the federal government sold those drilling rights. Morris said the Interior Department’s Bureau of Land Management failed to adequately scrutinize the consequences of its decision making, even though courts have consistently said such a “hard look” is required under the National Environmental Policy Act...Since Congress hasn’t revised the underlying, 50-year-old National Environmental Policy Act, all of its requirements remain on the books. And courts have been clear that the law requires a hard look at the cumulative effects of their actions, including greenhouse gas emissions, said Hana Vizcarra, staff attorney at Harvard University’s Environmental and Energy Law Program. “We’ll see how much the change of regulation will shift that,” she said

The U.S. Court of Appeals for the Ninth Circuit rejected the petition of oil supermajors and ruled that state courts are more suitable to impartially adjudicate climate change lawsuits against oil and gas companies instead of federal venues that are suspected to be bias to the energy industry. The lawsuits, filed by the cities of San Francisco and Oakland, hold five Big Oil majors, namely ExxonMobil XOM, Chevron CVX, ConocoPhillips COP, BP plc BP and Royal Dutch Shell RDS.A accountable for misleading the public by wrongly promoting their work to be environmentally friendly when in reality, they were aware of their hazardous contribution to climate change. By alleging the companies to be financially responsible for this menace, they demand the oil giants to cough up billions for the damages caused due to intensified carbon footprint and help construct a protective infrastructure to prevent the rise in sea-level and other problems cropping up from global warming. The unanimous verdict by a three-judge panel of the Ninth Circuit, Judge Sandra Ikuta, a George W. Bush appointee along with judges Morgen Christen and Kenneth Lee overturned the decision of judge William Alsup, who had earlier dismissed the Oakland and San Francisco litigation in 2018. He opined that court cases were not the best solution to address the damages induced by fossil fuels or global warming and consequently, moved the case to the federal court where two judges failed to reach a consensus...The cities and counties “live another day to put forth their claims and argue their case,” said Hana Vizcarra, staff attorney, Harvard Law School’s Environmental and Energy Law Program.

A proposed U.S. Forest Service rule stands to weaken a check on oil and gas development in national forests and possibly give the Interior Department more sway over land leasing decisions, legal analysts and conservationists say. The rulemaking, announced in 2018, aims to align the Forest Service’s leasing practices with those of the Bureau of Land Management to speed up fossil fuel development in national forests and grasslands nationwide, including oil and gas-rich forests in Ohio, Mississippi, and Colorado...The BLM, part of the Interior Department, is in charge of oil and gas leasing on all federal lands, including those managed by the Forest Service—which is part of the Agriculture Department. Federal law prohibits BLM from leasing in national forests without Forest Service consent, Parker said. The Forest Service is remaking its oil and gas regulations at a time when it is weakening environmental checks and balances under the National Environmental Policy Act and joining with the BLM in prioritizing logging and fossil fuels development on federal public lands, said Hana Vizcarra, staff attorney at the Harvard Law School Environmental and Energy Law Program...The service is also working on an update to its mining rules that would expedite mining permit applications with minimal environmental review by aligning the rules with those of the BLM. “When you look at this administration’s track record of pursuing revisions to rules, policies, and practices that favor oil and gas production over resource and ecosystem protection, it implies we’re going to see more of the same here,” Vizcarra said, referring to the Forest Service’s oil and gas rulemaking.

California cities and counties cleared an important hurdle in their legal fight to get major oil companies including BP Plc, Exxon Mobil Corp., and Chevron Corp. to pay tens of billions of dollars to deal with the effects of climate change. The U.S. Court of Appeals for the Ninth Circuit said Tuesday that San Francisco, Oakland, San Mateo County, and other jurisdictions can pursue their lawsuits in state court rather than in a federal venue thought to be more favorable to the energy industry. The decision doesn’t guarantee the local governments will ultimately prevail, but it paves the way for a full airing of their arguments in state court. The cities and counties “live another day to put forth their claims and argue their case,” said Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. The suits seek to reimburse taxpayers for costs associated with adapting to impacts such as rising sea levels—from building multibillion-dollar sea walls and repairing damage from powerful storms to—perhaps soon—moving whole communities inland...The ruling could spur more such claims and influence whether cases in other states are decided under local nuisance statutes, rather than under federal laws cited by courts that threw out similar complaints. “Venue is really important to the cities” because it allows them to “get to the point of arguing the merits of their case,” Vizcarra said before the ruling. But there’s still “another round of consideration” at the federal district court before the case fully moves forward in state court, she later said. And cities and counties face an uphill climb on the climate change-linked claims at the heart of the dispute, something state courts haven’t yet grappled with, she said.

After three years in office, the Trump administration has dismantled most of the major climate and environmental policies the president promised to undo. Calling the rules unnecessary and burdensome to the fossil fuel industry and other businesses, his administration has weakened Obama-era limits on planet-warming carbon dioxide emissions from power plants and from cars and trucks, and rolled back many more rules governing clean air, water and toxic chemicals. Several major reversals have been finalized in recent weeks as the country has struggled to contain the spread of the new coronavirus...With elections looming, the administration has sought to wrap up some of its biggest regulatory priorities quickly, said Hana V. Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program. Further delays could leave the new rules vulnerable to reversal under the Congressional Review Act if Democrats are able to retake Congress and the White House in November, she said... “Over the past three years, we have fulfilled President Trump’s promises to provide certainty for states, tribes, and local governments,” a spokeswoman for the E.P.A. said in a statement to The Times, adding that the agency was “delivering on President Trump’s commitment to return the agency to its core mission: Providing cleaner air, water and land to the American people.” But environmental and legal groups said the rollbacks have not served that mission. Ms. Vizcarra, who has tracked environmental rollbacks for Harvard since 2018, said the agency under Mr. Trump has often limited its own power to regulate environmental harm, especially when it comes to climate change.

Banks are finally starting to get it: Fossil fuels ain’t worth it. Just last week, Citigroup joined the wave of banks no longer investing in oil and gas projects in the Arctic. The only major bank in the U.S. that hasn’t committed to this is Bank of America. The economic crisis brought on by the spread of coronavirus has shown just what a risky investment fossil fuels are—and this new reality may just accelerate how soon these banks leave behind fossil fuels for good...However, it’s unlikely that the coronavirus had anything to do with these announcements as these commitments usually follow months of planning and preparation. “The timing is more coincidental than there’s a real causal connection there,” Hana Vizcarra, a staff attorney at the Harvard Law School Environmental and Energy Law Program, told Earther. “I don’t think the coronavirus has anything to do with these particular announcements, but I do think they may accelerate some of the work already going on in this area.” ...As permanent as the changes we’re experiencing feel, all this is pretty short term in the big picture of economics. And long-term trends are what banks care about, Vizcarra said. For oil and gas, the long term doesn’t look too great. Because, hello, climate change means no more fossil fuels. That future, however, feels a lot more tangible now that banks have actually seen what the death of oil might look like, particularly if they don’t start planning for it now. “Making that risk a reality and seeing that upfront—what that could really do, that demand shock, which causes a severe price drop—I think that will probably adjust some of their longer-term concerns,” Vizcarra said.

An article by Hana Vizcarra: In recent years, the drumbeat for more expansive climate-related corporate disclosures has grown louder and more consistent within a broader swath of the financial community. This intensifying call argues for considering more climate-related information legally material under existing U.S. securities disclosure law. A key component of materiality as defined in U.S. securities law—who is a “reasonable investor”—is evolving when it comes to climate-related information. This evolution may soon impact what climate-related information courts consider material. There are myriad articles on corporate responsibility and environmental, social, and governance (ESG) issues across multiple disciplines. U.S. securities law and its disclosure regime, including the meaning of “materiality” as defined by the U.S. Supreme Court in TSC Industries, Inc. v. Northway, Inc., have likewise been the subject of much discussion. Recent papers have also considered the materiality of ESG issues for purposes of disclosure under U.S. securities law. Fewer have considered how courts view the materiality of sustainability and ESG issues or the materiality of climate-related information specifically.

Exxon Mobil dodged a bullet last month when a judge rejected a novel climate-change lawsuit brought by New York’s attorney general. The case began with a promise from state officials that there would be a historic reckoning for the fossil fuel giant. It ended ignominiously as a failed accounting fraud claim. But that was just the beginning. Globally, humans are on the hook for trillions of dollars if they want to sufficiently reduce greenhouse gas emissions, acclimate to the damage already done and prepare for what is yet to come. As more governments and taxpayers find themselves staring down the barrel at rising climate costs, they are increasingly turning to the courts to hold Big Oil accountable...Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, said the increasing need to find someone other than taxpayers to pay the costs of climate change will continue to drive state and local governments toward litigation. Nevertheless, she’s skeptical about their chances for victory. “Plaintiffs in the remaining cases may yet see some success at the state level as they refine their claims,” she said. “But the federal court decisions indicate this remains a difficult path.”

ExxonMobil notched a big win in the New York Supreme Court, but don't expect the victory to inoculate Big Oil against several other courtroom challenges over global warming. A judge ruled yesterday that the state's attorney general failed to show that the oil giant misled investors about the costs of addressing climate change. The decision called the claims "hyperbolic." Big Oil is facing a widening set of legal fights on climate change...The ruling could affect litigants who bring cases with securities fraud claims in other jurisdictions, one expert tells Axios. "While the New York opinion is certainly not precedential in federal courts or another state court, the judge’s opinion will be relevant to other cases considering similar questions," Harvard's Hana V. Vizcarra says. "There is nearly no previous case law directly addressing climate-related information, so this case will definitely be looked to as a reference in cases involving corporate assessments of climate change risks," says Vizcarra, a lawyer with Harvard Law School’s Environmental and Energy Law Program.

When New York’s climate change lawsuit against Exxon Mobil Corp. went on trial last month in a Manhattan courtroom, the energy giant’s lead lawyer took great pains to emphasize that the state’s allegations weren’t really about climate change. ... Hana Vizcarra, a staff attorney at Harvard Law School’s Environmental and Energy Law Program, said nuisance lawsuits are difficult to make because plaintiffs must “draw the line” from a company’s actions to the damage done. The continued fight over state jurisdiction will be crucial, she said. “If they survive the fights over venue, there will be a continued appetite to bring these cases,” Vizcarra said.

When New York’s climate change lawsuit against Exxon Mobil went on trial last month in a Manhattan courtroom, the energy giant’s lead lawyer took great pains to emphasize that the state’s allegations weren’t really about climate change. After all, Theodore Wells said, Exxon was accused of hatching a cynical, arguably pedestrian scheme to mislead investors. The alleged securities fraud may have been intended to mask the impact global warming will have on Exxon’s finances, but it wasn’t a grand reckoning of its responsibility for the man-made phenomenon. The reason, of course, was that New York couldn’t find enough evidence to back up its initial contention that Exxon hid its knowledge of global warming...Hana Vizcarra, a staff attorney at Harvard Law School Environmental and Energy Law Program, said nuisance lawsuits are difficult to make because plaintiffs must “draw the line” from a company’s actions to the damage done. The continued fight over state jurisdiction will be crucial, she said. “If they survive the fights over venue, there will be a continued appetite to bring these cases,” Vizcarra said.

Did ExxonMobil mislead investors about the financial risks of climate change? That's the charge in an unprecedented trial against the oil and gas giant that got underway Tuesday and is likely to feature testimony by Rex Tillerson. The proceedings, which have been described as "historic" by environmental law experts, is expected to see former US secretary of state Tillerson give evidence and will be closely watched by energy companies and climate campaigners...Whatever the outcome of the trial, Hana Vizcarra, an environmental expert at Harvard Law School, says it will impact how large energy companies communicate their climate risk, particularly because Exxon is facing other lawsuits brought against it by shareholders that are yet to come to trial. "Investors and shareholders want more information on the climate and how it affects companies," Vizcarra told AFP. "Almost all oil and gas companies now produce climate-related reports -- the question is what information should be included in these reports," she added.