Climate Change Committee Report

I. International Activities

A. United Nations

1. Framework Convention on Climate Change (UNFCCC)

The Twenty-Eighth Meeting of the Conference of the Parties (COP28) to the UNFCCC took place in Dubai, UAE, from November 30 to December 13, 2023. At COP28, parties to the UNFCCC operationalized the Loss and Damage Fund by adopting the recommendation of the Transitional Committee, which was established at COP27. The purpose of the Fund is, “to assist developing countries that are particularly vulnerable to the adverse effects of climate change in responding to economic and noneconomic loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events.” The Fund will be “serviced by a new, dedicated and independent secretariat” and “governed and supervised by a Board” that will convene before January 31, 2024, with the World Bank serving as host for an interim period of four years. The responsibilities of the Fund host include receipt and implementation of contributions, holding and investing of funds, transfer of funds, accounting, reporting, and financial and fiduciary management, and ensuring compliance with established procedures. Parties pledged approximately $700 million to the Fund at COP28. Parties also selected the UN’s Office of Disaster Risk Reduction and Office for Project Services to host the Santiago Network on Loss and Damage, which was established at COP25 to catalyze technical assistance.

COP28 also served as the Fifth Meeting of the Parties to the Paris Agreement. The Parties adopted the first Global Stocktake (GST), a periodic assessment of collective progress towards achievement of the Paris Agreement’s goals. The GST is intended to inform parties ahead of national determined contribution (NDC) submissions, the next round of which are due in 2025. The GST found that “despite overall progress on mitigation, adaptation and means of implementation and support, Parties are not yet collectively on track towards achieving the purpose of the Paris Agreement and its long-term goals” and that “limiting global warming to 1.5°C with no or limited overshoot requires deep, rapid and sustained reductions in global greenhouse gas (GHG) emissions of 43 per cent by 2030 and 60 per cent by 2035 relative to the 2019 level and reaching net zero carbon dioxide emissions by 2050.” The GST provided detail on the specific status of multiple categories of Paris Agreement objectives and, to address the gap between those goals and the progress of parties, the GST “calls on parties to contribute to . . . global efforts” to (among other things) triple renewable energy capacity and double energy efficiency improvements by 2030, accelerate efforts towards the phase-down of unabated coal power, phase out inefficient fossil fuel subsidies, accelerate and substantially reduce non-carbon-dioxide emissions like methane, and transition away from fossil fuels, in a just, orderly and equitable manner, with developed countries continuing to take the lead.

Also pursuant to the Paris Agreement, Parties established the Global Goal on Adaptation framework to aid in meeting the Article 7 “global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change with a view to contributing to sustainable development and ensuring an adequate adaptation response.” The framework concluded the two-year Glasgow–Sharm el-Sheikh work programme and provides adaptation targets for specific sectors and thematic areas, including water, food and agriculture, ecosystems, and biodiversity. To facilitate development of progress assessment tools, Parties established the UAE–Belem two-year work programme.

Also at COP28, six countries contributed to the second replenishment of the Green Climate Fund (GCF), bringing the total pledges to $12.8 billion from thirty-one countries. This was a continuation of progress made at the High-Level Pledging Conference in Bonn, Germany in October 2023, where twenty-five countries pledged $9.3 million in total GCF support. Approximately $188 million in pledges were made to the Adaptation Fund and eight governments announced over $174 million in pledges to the Least Developed Countries Fund and Special Climate Change Fund.

At COP16 in 2010, Parties to the UNFCCC established an Adaptation Planning Process (APP), which allows developing countries to identify medium- and long-term adaptation needs and to formulate strategies for meeting those needs. Pursuant to the APP, a record eleven countries submitted national adaptation plans (NAPs) in 2023, increasing the total to fifty-three. The Marshall Islands, Burundi, Argentina, Zambia, Bhutan, Pakistan, Mozambique, Papua New Guinea, Bangladesh, Ecuador, and Haiti each submitted NAPs.

B. Regional and National Activities

1. European Union (EU) Corporate Sustainability Reporting Directive (CSRD)

The EU’s CSRD went into effect on January 5, 2023. The CSRD requires certain businesses to report their Scope 1, Scope 2, and Scope 3 emissions, as well as information regarding other forms of pollution, impacts on aquatic and marine resources, and on biodiversity as well as data on social and human rights, as well as corporate governance.

Many companies will be required to establish entirely new data collection and reporting systems in order to comply, beginning with certain large European businesses will be required to meet CSRD’s requirements in 2024. By 2025, all businesses will be required to comply with the CSRD if they (1) are “large” EU-registered business entities or groups, or (2) are listed on an EU stock exchange (with an exception for very small businesses), or (3) are non-EU companies that have annual revenues from the EU exceeding €150 million and have a subsidiary or branch located within the EU. The EU estimates that approximately 50,000 businesses registered within the EU will be required to comply with the CSRD. Additionally, the London Stock Exchange Group estimates that more than 10,000 non-EU registered companies will be required to comply with the CSRD, as well. Detailed regulations implementing the CSRD, spelling out exactly which companies must report what kinds of information, are set to be adopted in early 2024.

2. EU Carbon Border Adjustment Mechanism (CBAM)

On October 1, 2023, the EU’s CBAM went into effect for the first time. During the initial phase, importers of cement, iron and steel, aluminum, fertilizers, electricity and hydrogen will be required to submit annual reports on direct and indirect greenhouse gas (GHG) emissions related to their imports. Beginning on January 1, 2026, importers will be required to purchase emissions allowances equal to the GHG emissions related to their imports. The allowance price will be calculated using the weekly average auction price of EU Emissions Trading System allowances.

3. UK Solicitors Guidance

In April 2023, the Law Society of England and Wales, the professional association that represents solicitors in England and Wales, issued guidance for solicitors on climate change. The first part of the guidance offers insights for firms on how to manage their business in a way that is consistent with a transition to net zero. The second part of the guidance deals with (a) how climate change raises physical and legal risks, which may be relevant when advising clients; (b) issues relating to the intersection of legal advice, climate change, and professional duties; and (3) other issues relating to the solicitor-client relationship in the context of climate change.

C. Litigation

In 2023, there was a surge in cases against both government bodies and corporate entities centered around constitutional, fundamental, and human rights infringements, as well as breaches of international agreements, conventions, and violations of national climate laws. Arguments reflected an increasingly nuanced and multifaceted approach to addressing the complexities of climate-related legal disputes.

In VZW Klimaatzaak v. Kingdom of Belgium and Others, an NGO, alongside 58,000 citizen plaintiffs, successfully sued the Belgian government, asserting that its measures to mitigate GHG emissions were insufficient. The plaintiffs advocated for more robust action, calling for 40% emissions reductions below 1990 levels by 2020 and 87.5% by 2050. On November 30, 2023, the Belgian Court of Appeals found that the government had failed to sufficiently contribute to global effort to combat climate change. Relying on Articles 2 and 8 of the European Convention on Human Rights and the Belgian Civil Code, the court mandated that the federal government and the governments of the Flanders and Brussels regions must decrease their GHG emissions by a minimum of 55% (as opposed to the current target of 47%) compared to 1990 levels by 2030.

In Greenpeace v. Spain I and Greenpeace v. Spain II, the Spanish Supreme Court affirmed the alignment of Spain’s regulatory measures with the Paris Agreement EU commitments and regulations. The cases were brought in 2020 when Greenpeace Spain, Oxfam Intermón, and Ecologistas en Acción initiated legal proceedings against the Spanish Government, accusing it of inadequate response to climate change. Alleging a violation of Regulation (EU) 2018/1999 on the Governance of the Energy Union and Climate Action, the plaintiffs argued that Spain failed to approve a National Energy and Climate Plan by December 2019, as mandated, with goals for 2030 and a Long-Term Strategy for 2050 and that aligned with recommendations for limiting global warming to 1.5°C. The decision reveals the complexities of assessing government actions on climate change and that courts may not be receptive to pushing governments beyond current mitigation commitments.

In DUH and BUND v. Germany, two NGOs filed a claim with the Higher Administrative Court Berlin-Brandenburg, addressing the government’s failure to meet emission targets in the building and transport sectors. The organizations contended that carbon dioxide emissions from these sectors surpassed legally permissible levels and insisted on the immediate development of an emergency program outlining swift emissions reductions, ensuring compliance with targets from 2023 to 2030. On November 30, 2023, the court determined that the German government had breached national climate legislation by failing to enforce GHG emissions targets in the specified sectors. The Climate Protection Act obliged the government to formulate programs facilitating a 65% reduction in GHG emissions by 2030, relative to 1990 levels, for these sectors. The court, citing non-compliance, ordered a reassessment of government policies.

II. National Activities

A. Biden Administration Activities

1. Executive Order (EO) on Revitalizing Our Nation’s Commitment to Environmental Justice for All

On April 21, 2023, President Biden signed EO 14096, entitled “Revitalizing Our Nation’s Commitment to Environmental Justice for All.” EO 14096 builds upon EO 12898, issued by President Clinton in 1994, and reaffirms the federal government’s commitment to environmental justice. The Policy announced in the EO includes a commitment the ensuring every person has an environment that is healthy, sustainable, and climate-resilient, among other goals. The EO establishes a policy that every person must have “an environment that is healthy, sustainable, climate-resilient, and free from harmful pollution and chemical exposure” among other goals. It also acknowledges that cumulative impacts and burdens of climate change upon environmental justice communities and creates a process to identify, analyze and address those burdens. EO 14096 further directs the National Science and Technology Council to establish an environmental justice subcommittee, in order to coordinate federal strategies to identify and address gaps in science, data, and research related to environmental justice. The EO also established the White House Office of Environmental Justice within the Council on Environmental Quality (CEQ) and an Interagency Council. Within six months of the EO’s issuance, the Chair of the CEQ is required to issue interim guidance on implementation of the EO and no later than eighteen months of the order, and every four years thereafter, each agency shall submit an Environmental Justice Strategic Plan.

2. CEQ NEPA Guidance on Consideration of GHG Emissions and Climate Change

In January 2023, the Council on Environmental Quality (CEQ) issued interim guidance on considering climate change in environmental analysis under the National Environmental Policy Act (NEPA). The guidance is “interim” in that it took immediate effect but also received a public comment period. It builds upon a 2016 guidance document that CEQ withdrew in 2017.

The Interim Guidance focuses primarily on how proposed federal actions affect climate change. CEQ instructs agencies on quantifying, contextualizing, and mitigating GHG emissions. First, CEQ instructs agencies to quantify both reasonably foreseeable direct and indirect emissions of proposed actions and reasonable alternatives. Second, it endorses the social cost of GHGs and other tools that enable comparisons and “help evaluate the significance of an action’s climate change effects.” And third, CEQ instructs agencies to consider alternatives and mitigation measures that “avoid, minimize, or compensate for . . . climate change effects.”

The Interim Guidance also focuses on how climate change will affect proposed federal actions and mitigating those effects. It directs agencies to consider vulnerability and climate resilience throughout the NEPA process and use the most up-to-date scientific projections. The comment period closed in March 2023 and CEQ plans to finalize the guidance in April 2024.

3. Action on Worker Protection from Extreme Heat

On July 27, 2023, President Biden directed action to protect workers and communities from extreme heat. The EO asked the Department of Labor to issue Hazard Alert for heat and to ramp up enforcement to protect workers. It also directed the National Oceanic and Atmospheric Administration (NOAA) to invest up to $7 million from the IRA to improve weather forecasting to allow communities to better prepare for extreme weather events. Additionally, the EO directed the Department of Interior to invest $152 million from the Bipartisan Infrastructure Law to expand water storage and enhance climate resilience in western states.

B. Regulatory Activities

1. Mitigation and Adaptation

a. United States Department of Energy (DOE)

i. Clean Hydrogen Hubs

On October 13, 2023, DOE announced $7 billion, funded by the Bipartisan Infrastructure Law, for seven Regional Clean Hydrogen Hubs to deploy low-cost, clean hydrogen that can be produced with zero or near-zero carbon emissions. The program will set up a national network of clean hydrogen producers, consumers, and connective infrastructure to support hydrogen production and use. DOE predicts that these hydrogen hubs will produce 3 million metric tons of hydrogen annually, reaching nearly a third of the 2030 production target and reduce 25 million metric tons of carbon dioxide emissions from end-use each year.

ii. Transmission Capacity Purchases

On October 30, 2023, DOE announced it would enter into negotiations for contracts for up to $1.3 billion for three transmission projects across six states that seek to add 3.5 GW of additional grid capacity. DOE will purchase a percentage of the total capacity from each transmission line, with the goal of encouraging additional investment and reducing risk for project developers. Selected projects will increase resilience and reliability in their respective region and unlock clean energy to reduce power sector emissions.

The DOE based its decision to enter into the capacity contract negotiations based upon its National Transmission Needs Study (Study). The Study concludes that there is a pressing need for additional transmission infrastructure to support reliability and resilience needs as clean energy targets prompt higher levels of variable energy resource integration and extreme weather events nationwide continue to increase in frequency and intensity. The Study found a need for additional electric transmission infrastructure in nearly thirteen of the fifteen U.S. regions and that twelve of the fifteen regions to improve on cost-effective generation to meet demand. The Study also determined that historical transmission investments had declined in some regions in the second half of the last decade.

iii. GRIP Program Project Selection

On October 18, 2023, the Department of Energy awarded $3.46 billion for fifty-eight projects to strengthen electric grid resilience and reliability through the Grid Resilience and Innovation Partnership (GRIP) Program. The GRIP Program funds activities to modernize the grid to reduce impacts of natural disasters and extreme weather worsened by climate change. Projects included funding for interregional transmission to provide transfer capacity between regions and unlock significant renewable capacity, grid enhancing technologies, and microgrids. DOE also announced that all projects selected committed to the goals of the Justice40 Initiative, which requires providing 40% of the benefits to historically disadvantaged communities.

b. United States Environmental Protection Agency

i. Mobile Source Standards

The mobile source regulatory space continues to be very active, thanks to a steady stream of rulemakings and associated litigation stemming from efforts by the Federal Government and State of California to accelerate the transition to electric vehicles through more stringent GJG tailpipe standards.

At the federal level, EPA released new emission standards for all classes of on-road vehicles on April 12, 2023. For light-duty and medium-duty vehicles, EPA proposed new multi-pollutant emissions standards for model years 2027 through 2032. This proposed rule included new standards for both GHG emissions and criteria pollutants like nitrogen oxides, carbon monoxide, and particulate matter. The proposed rule also includes new durability and warranty requirements for electric vehicle batteries. For heavy-duty vehicles (trucks and buses), EPA released its phase 3 GHG proposal, covering model years 2027 through 2032. This proposed rule for heavy duty vehicles (HD) follows on the heels of the EPA’s multi-pollutant standards. The HD proposed rule also updates the model year 2027 GHG emission standards and promulgates new standards for model years 2028 to 2032. The HD proposed rule also updates the advanced technology incentives in the averaging, banking and trading program for the HD phase 2 rule for electric vehicles. Also, NHTSA announced its revised corporate average fuel economy (CAFE) standards on July 28, 2023. These standards cover model years 2027 through 2032 for passenger cars and light trucks, and model years 2030 through 2035 for heavy-duty pickup trucks and vans. The standards would require increasing fuel economy by 2% each year for passenger cars, 4% each year for light trucks, and 10% each year for heavy-duty pickups and vans.

ii. Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review.

On November 30, 2023, the EPA issued notice of a Final Rule for standards of performance for new, reconstructed, and modified sources and emissions guidelines for existing sources within the oil and natural gas sector. The Rule was developed in response to the January 20, 2021, EO titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”

The EPA’s Final Rule will reduce emissions of methane and other harmful air pollutants from oil and natural gas operations. For the first time, existing oil and natural gas sources will be required to reduce GHG emissions in the form of methane emissions.

First, the Rule created subpart OOOOb which regulates GHG and volatile organic compounds (VOCs) emissions for the Crude Oil and Natural Gas source category pursuant to the Clean Air Act Section 111(b)(1)(B). This subpart ensures that all well sites, centralized production facilities and compressor stations are routinely monitored for leaks. It also sets emission standards for dry seal compressors and requires owners and operators to use best management practices to minimize or eliminate venting of emissions from gas well liquids unloading. The subpart also expands options for using advanced methane detection technologies to find leaks and encourages continued innovation to allow operators to use new technologies as they develop.

Second, the EPA developed subpart OOOOc which establishes emission guidelines and compliance schedules for the control of GHG emissions. This subpart requires that each state submit a plan to the EPA that implements the emission guidelines provided by the Rule. State plans are due twenty-four months after the effective date of the Rule and must set compliance deadlines that are no later than thirty-six months after the plans are due to the EPA.

The Rule also amended subparts OOOO, OOOOa, KKK and appendix K. Subparts OOOO and OOOOa were amended to include existing sources that were not previously regulated under the 2012 rule. Subparts OOOO, OOOOa and KKK also were amended to include clarity on when sources transition from being subject to the Federal Rule and when they become subject to state plans under OOOOc.

iii. NSPS for GHG Emissions from New and Reconstructed EGUs; Emission: Guidelines for GHG Emissions from Existing EGUs; and Repeal of the Affordable Clean Energy Rule (ACE)

On May 23, 2023, the EPA proposed a rule under section 111 of the CAA to address GHG emissions from fossil fuel-fired EGUs. The rule contains five actions: 1) repeal of the Affordable Clean Energy Rule; 2) revised NSPS for GHG emissions from new fossil fuel fired stationary combustion turbine EGUs; 3) revised NSPS for GHG emissions from fossil fuel-fired steam generating units that undertake a large modification; 4) emission guidelines for GHG emissions from existing fossil fuel-fired steam generating EGUs; and 5) emission guidelines for GHG emissions from the largest, most frequently operated existing stationary combustion turbines. The EPA noted that “fossil fuel-fired EGUs are the nation’s largest stationary source of GHG emissions. Consistent with section 111, the proposed NSPS and emission guidelines reflect the application of the best system of emission reduction (BSER). Affected facilities are those that commence construction after May 23, 2023.

EPA stated that it was proposing the repeal of the ACE because the emission guidelines do not reflect the BSER for steam generating EGUs and are inconsistent with CAA section 111. EPA notes that since the promulgation of the ACE rule, the costs of CCS have decreased due to technology advancements as well as new policies including the expansion of the Internal Revenue Code section 45 Q tax credit in the IRA for CCS. In addition, the costs of natural gas co-firing have decreased as well. EPA also discussed that it was rejecting the prior approach in the ACE rule that CAA section 111 requires that the BSER be “one that can be applied to and at the individual source” and rejected the ACE rule’s exclusion of compliance measures that do not meet that requirement, such as trading. EPA was basing its decision in part on the American Lung Association v. EPA decision vacating and remanding the rule that there is “nothing in the text, structure, history, or purpose of [CAA section 111] that compels the reading” the EPA adopted.

EPA proposed a BSER for three subcategories for new and reconstructed fossil fuel-fired combustion turbines—low load, intermediate load, and base load, similar to the current NSPS for these sources. For the low load subcategory, the proposal is that the BSER will use lower emitting fuels. For the intermediate load and base load subcategories, the EPA proposes an approach in which the BSER has multiple components: 1) highly efficient generation; and 2) use of CCS or co-firing log-GHG hydrogen depending on the subcategory.

Due to the similarity of large and frequently used existing stationary combustion turbines to new stationary combustion turbines, EPA is proposing a BSER similar to the second and third phases of BSER for new base load combustion turbines.

Recognizing the cost-effectiveness of CO₂ is tied to the operating timeline for the plant, EPA proposed subcategories for existing fossil fuel-fired steam generating EGUs based on those timelines. EPA proposes a BSER for existing fossil fuel-fired steam generating EGUs that plan to operate in the long-term of CCS with ninety percent capture_. For units that commit to permanently cease operations prior to January 1, 2040, EPA proposed that the BSER is co-firing forty percent natural gas on a heat input basis. Units that elect to commit to permanently cease operations prior to January 1, 2035, and commit to operate with an annual capacity factor limit of twenty percent, the BSER is routine methods of operation and maintenance. For those units that will permanently cease operation prior to January 1, 2032, EPA proposes that the BSER is routine methods of operation and maintenance and no increase in emission rate.

The proposed rule maintains the 2015 standards for new coal units, based on CCS, and for reconstructed coal units, based on efficiency. EPA is not proposing to revise the NSPS because it does not anticipate any new or reconstructed coal EGUs. EPA is proposing that modified units apply a BSER of CCS with ninety percent capture.

iv. GHG Reporting Rule: Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems

In 2022, the IRA added section 136 to the Clean Air Act (CAA). This section created, for the first time, a direct charge for methane emissions. The section also required the EPA to revise the Code of Federal Regulations so that the charge calculations are “based on empirical data, . . . reflect the total methane emissions and waste emissions from the applicable facilities, and allow owners . . . to submit empirical emissions data.”

On August 1, 2023, the EPA proposed a rule to satisfy that requirement. The proposed rule contained four stated goals: (1) address potential gaps in emissions reporting; (2) revise to add new emissions calculation methodologies or improve existing methodologies; (3) revise reporting requirements to improve verification; and (4) make technical amendments, clarifications, and corrections. The EPA also proposed confidentiality determinations for certain data reporting elements.

To address potential gaps in reporting, the EPA added new sources for reporting such as nitrogen removal units, produced water tanks, mud degassing, crankcase venting, and a category for “other large release events.” The EPA defined “other large release events” as a source not subject to reporting that either (1) emits methane at a rate of at least 100kg/hr at any point or (2) emits 250 metric tons of CO₂e or more over the duration of the event. Controversially, the rule also allows for third-party notifications of “other large release events” to the emitters themselves. The emitters then have to include every notification received in their reports or explain why they did not.

Other revisions include adjusting calculations to incorporate methodologies based on an improved understanding of emission sources and adjust methodologies for sources that cannot be accurately measured under the current rule. It also adjusted reporting requirements to better align with calculation methods in the rules. The rules have not yet been finalized.

c. United States Federal Energy Regulatory Commission (FERC)

i. Order No. 2023: Improvements to Generator Interconnection Procedures and Agreements

On July 27, 2023, the Federal Energy Regulatory Commission issued a final rule reforming its pro forma large and small generator interconnection procedures and agreements. These reforms, among other things, intend to increase the efficiency of the interconnection process by switching to a cluster study process and increasing financial commitments to proceed through the interconnection queue; increase the speed of interconnection study processing by eliminating the reasonable efforts standard and implementing an affected system study process; and address changes in technology, such as the rapid growth of energy storage systems and new, potentially more cost-effective grid-enhancing technologies.

To ensure that transmission providers properly consider storage technologies in the interconnection process, Order No. 2023 required changes to how these technologies are treated and studied. For example, if an interconnection customer proposes to add a second technology to its proposed generating facility, transmission providers are prohibited from categorically treating the addition as a material modification that would result in a loss of the interconnection customer’s queue position. Instead, transmission providers must study these changes to determine if the addition would affect other interconnection customers. The final rule also prohibits transmission providers from studying energy storage using assumptions that would be inconsistent with the way in which the proposed facility commits to operate. To accelerate the interconnection process, the final rule also adopted a requirement that transmission providers must evaluate certain specific alternative transmission technologies.

ii. Extreme Weather Final Rule

On June 15, 2023, FERC finalized two rules related to electric systems and extreme weather to help improve reliability of the bulk power system. The first rule, One-Time Informational Reports on Extreme Weather Vulnerability Assessments Climate Change, Extreme Weather, and Electric System Reliability, directs transmission providers to submit one-time reports describing their policies and processes for conducting extreme weather vulnerability assessments and identifying mitigation strategies. The second rule, Transmission System Planning Performance Requirements for Extreme Weather, requires the North American Electric Reliability Corporation to develop or modify reliability standards for extreme weather conditions.

d. Department of Interior

i. Bureau of Land Management (BLM) Approval of Willow Oil Project

On March 13, 2023, BLM approved the Willow Master Development Project, an oil production project on land leased by ConocoPhillips within the National Petroleum Reserve in Alaska that will include drilling up to 199 new oil wells and construction of related transportation and processing infrastructure. BLM initially approved the project in 2020, but Alaska Native interest groups and environmental organizations successfully challenged the approval in the U.S. District Court for the District of Alaska. BLM developed a supplemental EIS for the Project and issued a new Record of Decision in March. The BLM denied two of the five drill sites proposed by ConocoPhillips, reducing the scope of the project from its original size by 40%. In addition, ConocoPhillips relinquished rights to 68,000 acres of existing leases. At peak, the Project is expected to produce 180,000 barrels of oil per day, resulting in approximately 130 million metric tons of carbon dioxide emissions over its lifetime.

Alaska Native interest groups and environmental organizations again challenged the Project arguing that BLM violated NEPA, the Endangered Species Act (ESA) and other statutes; however, on November 9, 2023, the U.S. District Court of Alaska dismissed the case. The court concluded, among other findings, that BLM had appropriately considered a reasonable range of alternatives, rejected claims that BLM’s GHG emissions analysis failed to consider emissions from potential future development, concluded that the biological opinion was not arbitrary and capricious in its incidental take analysis of polar bears, and found that BLM had appropriately determined that the GHG emissions from the Project were not an effect of the action under the ESA. On Nov. 17, plaintiffs filed an appeal in the Ninth Circuit Court of Appeal along with a motion for a preliminary injunction to prevent the start of construction; the injunction was denied on December 18, 2023.

ii. Bureau of Ocean Energy Management (BOEM) Wind Leases

To meet the Biden Administration’s “30 by 30” goal of having 30 gigawatts (GW) of offshore wind in operation by 2030, BOEM took action to announce several new offshore wind leases. The first offshore wind energy lease sale in the Gulf of Mexico was announced on July 20, 2023, with approximately 3.7 GW of power potential available through the auction. Three areas were auctioned for lease, with only one receiving a bid. Most recently, on December 11, 2023, BOEM announced a proposal for an offshore wind lease sale in the Central Atlantic, which will include areas offshore of Delaware, Maryland and Virginia, with the potential to provide over 2.2 million homes with clean energy. A week later, BOEM also announced plans to prepare a programmatic EIS for offshore wind leases off the coast of California. BOEM also released a proposed rule to speed up offshore wind permitting in January.

iii. Bureau of Ocean Energy Management 2024-2029 National Outer Continental Shelf Oil and Gas Leasing Program

BOEM also published its final oil and gas leasing program in December. The IRA prevented BOEM from issuing offshore wind leases unless the agency offered at least 60 million additional acres for oil and gas leasing, and the program includes three oil and gas lease sales in the Gulf of Mexico to meet that minimum.

e. Department of Treasury Hydrogen Production Tax Credits

On December 22, 2023, the U.S. Department of Treasury and the Internal Revenue Service released a proposed rule for the Clean Hydrogen Production Credit established under the IRA. The rule recognized that conventional hydrogen production can result in climate pollution, while the tax credit “aims to make production of clean hydrogen with minimum climate pollution more economically competitive and accelerate deployment of the U.S. clean hydrogen industry.” The value of the credit will range depending on the lifecycle emissions of the hydrogen production. Importantly, the proposed rule describes how taxpayers may use energy attribute certificates (EACs), which demonstrate the purchase of clean power and are used as offsets against emissions from hydrogen production. The rule would require that three criteria be met for EACs being purchased by hydrogen producers, including (1) incrementality—the EAC must come from new clean generators that began commercial operation within three years of the hydrogen facility being placed into service or from uprates (added capacity); (2) deliverability—the EAC must come from clean power sourced in the same region as the hydrogen producer; and (3) time-matching—the EAC must be matched to hydrogen production on an hourly basis. The rule also provides details on eligibility for hydrogen produced using renewable natural gas and fugitive methane.

2. Environmental & Social Governance

a. SEC Disclosures

The IRA has been a major driver of private sector investments. While reporting requirements ranging from the EU’s CSRD to California’s Climate Legislation may apply to private sector investments and related GHG emissions, the U.S. Securities and Exchange Commission (SEC) has not finalized rules on climate-related disclosures. The SEC proposed rule, published in 2022, would require disclosure of certain climate-related risks and financial statement metrics in registration statements and periodic reports.

b. Other Disclosure Developments

Having fulfilled its remit and concurrent with release of its 2023 status report, the Taskforce on Climate-related Financial Disclosures (TCFD) was disbanded on October 12, 2023. Companies can continue to use the TCFD recommendations, and some may still be required to do so. The TCFD recommendations are incorporated into ISSB Standards and the International Financial Reporting Standards (IFRS) Foundation has taken over monitoring of the progress of companies’ climate-related disclosures.

A new Taskforce on Nature-related Financial Disclosures (TNFD) was launched on September 18, 2023, at the New York Stock Exchange as part of New York Climate Week to focus on conserving and restoring nature and the many ways that doing so will reduce risks to business and finance.

C. Litigation

1. State and Local Government Climate Cases Against Fossil Fuel Companies

The U.S. Supreme Court denied fossil fuel industry defendants’ petitions for writs of certiorari seeking review of the remand orders in climate change cases brought by state and local governments. The plaintiffs asserted state common law and statutory claims and allege that the defendants misled consumers about the climate change risks posed by their products. Seven federal circuit courts of appeal have rejected the grounds for federal jurisdiction asserted by fossil fuel industry defendants, including in 2023 decisions by the Second, Eighth, Ninth, and D.C. Circuit Courts of Appeal. As of December 22, 2023, a petition for writ of certiorari seeking review of the Eighth Circuit’s affirmance of the remand order in a case brought by Minnesota was still pending.

In the state courts, the Hawai‘i Supreme Court affirmed the denial of fossil fuel companies’ motions to dismiss Honolulu’s lawsuit. The court found that the minimum contacts test for personal jurisdiction was satisfied. Regarding the motion to dismiss for failure to state a claim, the court held that Honolulu’s claims were not preempted by the Clean Air Act or federal common law.

2. State Constitutional Rights: Montana and Hawai‘i

State trial courts ruled in favor of youth plaintiffs who asserted climate change-based claims under the state constitutions of Montana and Hawai‘i. In Montana, a trial court held, after a seven-day trial, that a provision of the Montana Environmental Policy Act (MEPA) that restricted consideration of climate change in environmental reviews violated the plaintiffs’ rights under the Montana Constitution’s environmental rights amendment. The Montana Supreme Court has accepted the case for appeal. In Hawai‘i, a trial court denied a motion to dismiss a case in which youth plaintiffs assert that the State’s fossil fuel-based transportation violates the Hawai‘i Constitution’s environmental rights amendment. A trial is scheduled to begin on June 24, 2024.

In a case challenging the Hawai‘i Public Utilities Commission’s (PUC’s) denial of an application to provide power from a biomass energy facility to the electric grid, the Hawai‘i Supreme Court upheld the PUC’s decision and rejected a contention that the statute barred consideration of the biomass facility’s GHG emissions. The court held that ignoring the facility’s GHG emissions would not be consistent with the State’s obligations under the State constitution’s “right to a clean and healthful environment, which encompasses the right to a life-sustaining climate system.”

3. ESG Litigation

A federal district court in Texas upheld a U.S. Department of Labor rule that provides that fiduciaries of private-sector employee benefit plans may consider the economic effects of environmental, social, or governance (ESG) factors on investments. The court held that the rule was not contrary to the Employee Retirement Income Security Act of 1974 and was not arbitrary and capricious. The plaintiffs—which include 27 states—appealed the case to the Fifth Circuit Court of Appeals. Another challenge to the rule is pending in federal court in Wisconsin.

In Kentucky, a federal district court dismissed a First Amendment challenge to the Kentucky Attorney General’s investigation of the investment practices of six banks that were members of the United Nations’ Net-Zero Banking Alliance. The court held that the plaintiffs did not demonstrate standing for the claim and remanded the remaining claims, which were all grounded in state law, to state court.

III. State and Local Activities

A. Mitigation

1. Regional and Multi-State Activities

The United States Climate Alliance (USCA) continues to convene states committed to reducing GHG emissions, even as the Biden Administration rejoined the Paris Climate Agreement in 2021 and set new NDCs. USCA was initially established in 2017, after the Trump Administration announced its withdrawal of the United States from the Paris Agreement, when governors in Washington, New York, and California came together to announce that their states intended to honor the United States’ commitment to reduce emissions by 26-28% from 2005 levels by 2025.

The USCA continues to be a bipartisan partnership among twenty-four governors, representing over 60% of the country’s economy, 55% of the U.S. population, and 41% of net GHG emissions. Their goals now include, in addition to the Paris Agreement targets, a 50% reduction in GHG emissions by 2030, and achieving a net-zero target by no later than 2050. Most recently, USCA members released a report finding that member states were on track to meet their 2025 reductions goal, though additional action must be taken to meet the goals for 2030 and beyond. They also established new goals throughout 2023, including a heat pump deployment target for the decarbonization of buildings in which 40% of the benefits are to be distributed amongst frontline communities.

Other multi-state initiatives include 46 states currently developing Priority Climate Action Plans (PCAPs) under the Climate Pollution and Reduction Grant (CPRG) Program administered by the Environmental Protection Agency. The CPRG program was created through the Inflation Reduction Act of 2022 (IRA), and facilitates the development and implementation of GHG reduction plans by providing planning grants to states, local governments, tribes, and territories. Around $5 billion in funding is available, with the first phase aiding in the development of PCAPs. PCAPs are due to be completed by March 2024, with Comprehensive Climate Action Plans due to be completed by March 1, 2024. The CPRG also has $4.3 billion in to support the implementation of these plans once submitted.

At the regional level, states in the Northeast and Mid-Atlantic continue to reduce power sector emissions via the Regional Greenhouse Gas Initiative (RGGI). RGGI is a cooperative effort of eleven states that work to cap and reduce emissions from the power sector through an allowance trading program, and to invest proceeds from the sale of allowances in clean energy programs and projects. In its most recent auction, held December 6, 2023, emissions allowances sold for almost $15 per ton, generating over $411 million in proceeds for states to invest in emissions-reducing programs. Two additional states are in uncertain positions regarding participation in RGGI. In Pennsylvania, where Governor Wolf has been working to implement RGGI under existing legislative authority, the Commonwealth Court ruled in November that auction proceeds raised by the Program would be “an invalid tax.” Environmental groups within the state have filed an appeal of this ruling. In Virginia, the State Air Pollution Control Board voted in June to repeal the regulation authorizing Virginia’s participation in the program within the state, as per Governor Youngkin’s EO 09 in 2022. Virginia environmental groups filed a lawsuit in August. In November, a judge ruled that three of the four plaintiffs did not have standing, but that the Association of Energy Conservation Professionals could theoretically suffer financial losses from the RGGI withdrawal and moved the case to Floyd County.

Dozens of states are working to reduce GHG emissions within the transportation sector. Under Section 209 of the Clean Air Act, California may request a waiver from EPA to set stricter emissions standards for new vehicles than those set at the federal level; under Section 177, other states may then adopt requirements identical to California’s. Currently, seventeen states have adopted California’s Low-Emission Vehicle criteria pollutant and GHG emission regulations, and fifteen have adopted its Zero-Emission Vehicle (ZEV) regulations. Advanced Clean Cars (ACC) II’s provisions, adopted by California in 2022, effectively require all cars and light trucks sold in the state to be ZEVs beginning in 2035. As of January 2024, seventeen additional states and the District of Columbia have either announced their plans to develop legislation or have already implemented provisions adopting these standards, with most going into effect in 2026 or 2027. An April 2023 report found that if all other Section 177 states adopted ACC II, GHG emissions from the transportation sector through 2050 would be reduced by a cumulative 1,310 million metric tons of CO_2e.

2. State Activities

Across the country, states are continuing to lead efforts to reduce GHG emissions and address the impacts of climate change.

a. California

In October 2023, California Air Resources Board’s (CARB) Advanced Clean Fleets (ACF) regulation to outlaw the sales of medium-and heavy-duty internal combustion fleets by 2036 and phase in ZEVs. ACF works in conjunction with the Advanced Clean Trucks rule to “ensure that zero-emission vehicles are brought to market” and requires that manufacturers build solely ZEV trucks beginning 2036. The ACF applies to any 1) federal fleet, 2) state or local government fleets, 3) fleet owners that control 50 vehicles or earned $50 million or more in revenue, or 4) fleets that visit seaports or railyards. The ACF may impact fleet owners in other states because the U.S. CAA allows other states to adopt the ACF. New York, New Jersey, Oregon, Massachusetts, Washington, and Vermont have stated they will adopt the ACF. California applied for a waiver to enforce the ACF from U.S. EPA in November 2023.

Also in April 2023, CARB passed a new In-Use Locomotive regulation, which phases out locomotives built prior to 2000, limiting the federal definition of locomotive useful life, limits idling, amends registration and reporting procedures, and requires locomotive operators to establish a new trust account that will work to fund cleaner locomotives. In 2026, the rule requires railroads to set aside money in a Spending Account, calculated based on the operation of diesel-powered locomotives in the state the prior year. After 2030, the Spending Account funds may be used solely for the purchase of zero-emission locomotives. In addition, beginning in 2030, only zero-emission locomotives may be purchased in California for use in switching operations and in 2035, the same sales limitation will apply to line haul locomotives that operate over longer hauls, including interstate transit. Implementation of the Regulation is expected to significantly reduce nitrogen oxide and diesel particulate matter, resulting in over $32 billion in health benefits and savings. The rule is applicable to every locomotive operator in California and is effective January 1, 2024. The Association of American Railroads and the American Short Line and Regional Railroad Association filed suit challenging the legality of the regulation on June 16, 2023.

California legislators have also adopted policies to mitigate the impacts of climate change. In October, Governor Newsom signed into law A.B. 579, which requires that by 2035, all newly purchased or leased school buses operating within California must be zero-emission. $150 million in grants have been made available in allotments of up to $495,000 per vehicle to support school districts purchasing ZEV buses. Prior to the passage of this legislation, school buses were exempt from California’s requirements that all medium- and heavy-duty trucks be 100% ZEV by 2045. Connecticut, Maine, Maryland, and New York have passed similar fleet legislation requirements mandating either that new purchases or entire school bus fleets must transition to ZEVs, with implementation timelines ranging from the next four to seventeen years.

Legislators also passed new laws relating to offshore wind this year. AB 3, the California Wind Advancement Act; SB 286, the Offshore Wind Expediting Act; and AB 1373, authorizing central procurement of clean energy resources, all work to accelerate the development and implementation of offshore wind within the state. AB 1373 allows the state to agree to long-term contracts relating to the purchase of electricity from offshore wind facilities. SB 286 created a “consolidated permitting” process for permitting and review relating to offshore wind projects in the coastal zone. It also created a new Offshore Wind Energy Fisheries Working Group, which is required to develop a statewide strategy by January 2026, that will minimize the impacts offshore wind projects will have on fisheries. AB 3 mandates that the state’s Energy Commission develop a plan for seaport readiness for offshore wind development while also studying the feasibility of reaching “70% and 85% in-state assembly and manufacturing of offshore wind energy projects.”

b. New York

The New York Climate Action Council finalized its Scoping Plan at the very end of 2022, outlining how New York is planning to reduce GHG emissions and reach its goals of net-zero emissions by 2050, as required by the Climate Leadership and Community Protection Act (CLCPA). One of the most significant recommendations includes the implementation of a new cap-and-invest program. As directed in a January 2023 announcement by Governor Hochul, the state’s Department of Environmental Conservation and the New York State Energy Research and Development Authority (NYSERDA) are collaborating to create a new cap-and-invest program that mandates a decreasing cap on GHG emissions, finances programs that drive reductions equitably with an emphasis on frontline communities, checks costs to low-income households, and maintains the competitiveness of New York businesses. In December 2023, the two agencies released a Pre-Proposal Outline and Climate Affordability Study, which will help to provide a framework for program design and benefit distribution. Five core principles form the basis of the program: affordability; climate leadership; creation of jobs and preserving competitiveness; investing in disadvantaged communities; and funding a sustainable future.

As part of New York State’s 2023 budget, legislators passed the Build Public Renewables Act, which had been four years in the making. The new law will empower the New York Power Authority (NYPA) to build, operate, and own its own renewable energy projects that will work to advance CLCPA goals, filling gaps left by the private sector. It also requires that NYPA provide all of its electricity from renewable energy by 2030. Several provisions emphasize prioritizing clean energy projects in low- and middle-income communities, and the creation of union jobs through the development and implementation of these projects.

In December 2023, Governor Hochul announced funding that has been made to local communities in an effort to encourage clean energy programs. $25 million has been made available through the Clean Energy Communities Program, administered by NYSERDA. The Program works with city, county, town, and village governments to identify and implement clean energy projects that save energy and cut costs. Here too, there is an emphasis on funding projects in “disadvantaged communities.”

The budget also includes other environmental provisions. For example, it mandates that by 2029, the majority of new buildings built “within the state will be prohibited from using fossil fuels,” marking the first legislation in the country to enact such a statewide ban. It also establishes the financial foundations that will be required to support the new cap-and-invest program and includes provisions that require that at least 30% of auction proceeds go toward rebate initiatives in environmental justice communities. $200 million were allocated to the state’s EmPower Program, which assists frontline communities in upgrading to more energy-efficient appliances, $500 million to clean water investments, $200 million to state parks, and $400 million to the state’s Environmental Protection Fund.

c. Other State Activities

California and New York are not the only states making advancements in mitigation legislation. Minnesota enacted a flurry of climate legislation in 2023. In February, the state legislature passed SF 4 requiring all electricity sold in the state to be GHG-free by 2040 and adding Minnesota to the list of twenty-three other states – in addition to the District of Columbia and Puerto Rico – that have established 100% clean energy goals. Minnesota’s interim goals include 80% carbon-free energy by 2030 and 90% carbon-free energy by 2035. The law also includes environmental justice provisions, which, among other things, require that utilities report to the Public Utilities Commission on the impacts their facilities have in environmental justice communities. In May, Governor Tim Waltz signed into law a “transformational” environmental package, which includes new regulations on PFAS substances, $20 million in funding to the state’s new green bank, and additional incentives for the sale and purchase of electric vehicles (EVs). In all, Minnesota legislators passed more than forty climate initiatives this session relating to energy, the environment, health, agriculture, transportation, and construction – all of which will go towards advancing the state’s Climate Action Framework. HF 2887 allocates close to $9 billion in funding for roads, bridges, and transit infrastructure, the legislation requires that the Minnesota Department of Transportation evaluate the impact of any transportation plans through the projection of travel demand. It also includes language extending EV rebates, expanding bike lanes, incorporating vanpooling into transit services, and more.

In August, Delaware passed the Delaware Climate Solutions Act, which requires the state to achieve adopted new legislation to reduce net-zero GHG emissions by 2050. The new law also sets an interim goal of 50% net reduction from 2005 levels by 2030, and the bill codifies the creation of a chief climate change officer, who will collaborate with other agency leads to implement these goals. Governor Carney signed several other climate and environmental measures into law this year, including H.B. 10, which sets statewide targets for purchasing and transitioning the state’s fleet of school buses to EVs, H.B 12, which expands the EV rebate program across the state, and S.B. 7, which expands the state’s Energy Office.

In Michigan, Governor Whitmer signed historic clean energy legislation into law this year. One of the most significant pieces of legislation includes S.B. 271, which establishes a 100% clean energy standard for the state by 2040. It also sets an interim goal of 50% clean energy by 2030, and a 2035 goal of producing 60% of its energy from renewables. Other bills focus on improving energy efficiency (S.B. 273); establishing the Office of Worker and Community Economic Transition, which will help with a just transition to clean energy within the state (S.B. 519); streamlining utility approval processes for clean energy projects (H.B. 5120 and H.B. 5121), and authorizing Michigan’s Public Service Commission to consider environmental justice and equity concerns in their regulatory decisions (S.B. 502).

In New Jersey, Governor Murphy issued three EOs in February 2023 related to clean energy and clean transportation goals. EO 315 accelerated the state’s timeline for achieving 100% clean energy, shifting that goal from 2050 to 2035. EO 316 deals with commercial and residential buildings, setting a new target of 2030 to install new energy-efficient heating and cooling systems in properties across the state, with an emphasis on low-to-moderate income properties. EO 317 directs the state’s Board of Public Utilities to plan for the future of natural gas in New Jersey. Governor Murphy announced other measures as well, directing that $70 million in RGGI auction proceeds go towards medium- and heavy-duty EV incentives, that state officials work to adopt ACC II, and that new provisions be adopted to enhance flood protection for homeowners, commercial businesses, and infrastructure.

Colorado also strengthened its emissions reduction commitments. Its new SB 23-016 targets include mandating economy-wide emissions reductions (below 2005 levels) of at least 65% by 2035, 75% by 2040, 90% by 2045, and strengthening Colorado’s target to achieve net-zero GHG emissions by 2050. Maryland signed legislation relating to its 2035 goal of 100% clean energy, codifying its new 8.5 gigawatt offshore wind goal, facilitating the transition to EVs, and ensuring that a just transition to clean energy occurs over the next decade.

On the west coast, Washington and Oregon are working to advance climate legislation and plans. In Washington State, a new law passed by the legislature this year mandates that localities must include climate change considerations in their required 20-year comprehensive plans beginning in 2025. This includes considering GHG emissions reductions, as well as adaptive measures to climate-related threats. Lawmakers also passed legislation that will address environmental justice concerns – H.B. 1215 mandates that the siting of clean energy projects take equity into account, and creates the Interagency Clean Energy Siting Coordinating Council to ensure that this happens. In Oregon, the state’s Global Warming Commission published a new Climate Action Roadmap to 2030, which includes a variety of recommendations that aim to help the state reach its new emissions reduction goals of 45% below 1990 levels by 2030. Should the recommendations be implemented, the state projects that thousands of new jobs could be created, with upwards of $120 billion in cumulative net economic and health benefits.

However, not all states are advancing positive climate legislation, however. In May, Montana Governor Gianforte signed into law a bill that outlaws the consideration of climate impacts and GHG emissions during the Department of Environmental Quality’s comprehensive review of projects – including for coal mines and power plants. In response, sixteen youth plaintiffs sued the state, arguing that the “limitation” to the MEPA is unconstitutional. A judge ruled in favor of the plaintiffs, writing that the “failure to consider GHG emissions from energy and mining projects violates the state constitution because it does not protect Montanans’ right to a clean and healthful environment and the state’s natural resources from unreasonable depletion.” The judge also permanently enjoined this version of the MEPA limitation.

3. Local Activities

Local governments have had a prominent role in climate mitigation efforts for years. In 2023, many cities, large and small, passed climate action plans for the first time, or updated their plans with more stringent targets. Charlottesville, Virginia released a climate action plan in March that establishes a goal of reducing emissions 45% by 2030 and reaching net neutrality by 2050. It breaks its recommendations down into steps community members can take in collaboration with the city versus strategies and actions that fall under the direct jurisdiction of the municipal government. It also provides implementation recommendations, as well as metrics and indicators for measuring the plan’s application. In the Midwest, cities like Des Moines, Iowa are adopting their own climate action plans as well. In December, Des Moines released its Climate Action and Adaptation Plan, which outlines the city’s climate pollution and reduction goals, including a 2025 goal to reduce emissions by 25% from 2008 levels, a 2030 goal to reduce emissions by 45%, a 2035 goal to have 100% carbon-free electricity citywide, and a 2050 net-zero GHG emissions goal. The Plan’s recommendations are divided into seven different focus areas, and take guiding principles of equity and justice, creativity and innovativeness, economic benefits, and health and welfare into account.

Other cities are releasing implementation updates tracking progress toward their emissions reduction goals. Raleigh, North Carolina released an Implementation Progress Report in February 2023 that documents the successes the city has had and how the community has contributed to advancing the city’s Community Climate Action Plan. It outlines the projects that help the community reach its goal of 80% emissions reduction by 2050 and recommends additional strategies that will help continue on the path to reach this goal. Albuquerque, New Mexico released its Climate Action Implementation Report in November 2023. Since its 2021 Climate Action Plan was published, the city has advanced in the areas of sustainable buildings, improving energy efficiency and developing green building projects, adding to the state’s renewable energy portfolio, and expanding EV infrastructure.

B. Adaptation

1. Regional and Multi-State Activities

2023 has been another record year for extreme weather and climate disasters. According to the NOAA, as of December 8, 2023, there were twenty-five confirmed climate-related disaster events this year with losses exceeding $1 billion each, up from fifteen events last year. These events have occurred all over the country, and include one drought, two floods, nineteen severe storms, one tropical cyclone, one wildfire, and one winter storm, resulting in the deaths of almost five hundred people. From 1980 to 2022, the annual average for these types of events was a little over eight; over the last five years, that number has skyrocketed to eighteen. Total costs in damages are upwards of $73 billion in 2023 alone.

Regional efforts are underway to accelerate adaptation efforts in the face of these growing threats. Using funding from the 2022 IRA, NOAA has created the Climate Resilience Regional Challenge, with almost $575 million available for regional, collaborative projects that address coastal community resilience and adaptation to extreme weather and sea-level rise. While the guidelines are relatively broad, NOAA is looking to focus on financing projects that facilitate regional coordination, with an emphasis on underserved communities. California has implemented a similar program – the Regional Resilience Planning and Implementation Grant Program – to fund projects that “form regional partnerships to plan and implement projects that advance climate resilience and respond to the greatest climate risks in their regions.” And the California-Nevada Adaptation program – a regional effort that works to prepare communities across the two states to address climate hazards – has received funding from NOAA, through their Climate Adaptation Partners Initiative, to focus on collaborating on adaptation strategies, including a regionally focused extreme heat program.

To the north, government officials and tribal leaders from British Columbia and Washington State, have announced an international regional agreement that commits both jurisdictions, as well as tribal nations within the area, to address flood risk and restore animal habitats in the Nooksack and Sumas watersheds. According to organizers, the goal of the agreement is to “collaboratively manage the flood risk from the Nooksack and Sumas rivers,” while also working to restore important habitat and ecosystem capabilities so that fish and other aquatic species deemed as critical can thrive in these areas. It will additionally facilitate collaboration and cooperation between state and Indigenous governments through the joint evaluation of flood hazards, the sharing of data and research, and the leveraging of financing opportunities for flood-mitigation projects.”

2. State Activities

States have continued to advance initiatives to make their communities more resilient and sustainable. In California, the Governor’s Office of Planning and Research announced this year that it would award $8 million in funds toward the first round of its Adaptation Planning Grant program to support fourteen projects throughout the state that foster collaborative efforts and focus on equity, nine of which are located within Justice40 communities. Governor Newsom also signed SB 337 into law in October, officially codifying the state’s goal of conserving at least 30% of California’s coastal waters and land by 2030.

In 2023, the Oregon Legislature passed an expansive climate resilience package, including: the creation of a permanent fund for natural climate solutions; the conservation, restoration, and improved management of specific areas of forests and wetlands; the creation of a process to engage with local tribes concerning land management; the establishment of a “natural climate solutions” definition in state policy; and a mandate that state officials develop a natural and working lands carbon inventory. The legislation also renamed the Oregon Global Warming Commission as the Oregon Climate Action Commission, and expanded its membership to additional agencies, while also granting the Commission increased authority.

In May 2023, Governor Ivey signed E.O. 736, establishing Alabama’s Resilience Council, which is tasked with collaborating with local, state, and federal officials to ensure that communities throughout the state can build more resiliently, live safer, and recover more quickly from disasters. Members of the council include leaders from the state’s Department of Commerce, Forestry Commission, Department of Transportation, and other state agencies. South Carolina’s Office of Resilience released its Strategic Statewide Resilience and Risk Reduction Plan in 2023, which “is intended to serve as a framework to guide state investment in flood mitigation projects and the adoption of programs and policies to protect the people and property of South Carolina from the damage and destruction of extreme weather events.” Its recommendations are divided into ten categories, which include establishing a voluntary pre-disaster buyout program, incorporating resilience into housing recovery, maintaining natural flood protections through conservation efforts, and incorporating resilience into the design of infrastructure throughout the state.

In 2023, the Washington State Department of Natural Resources released a three-year update to its Climate Resilience Plan. Included among the resilience strategies are increasing tree canopy coverage in urban areas, conserving 10,000 acres of forests for carbon capture and market opportunities, and conserving and restoring at least 10,000 acres of kelp forest and eelgrass meadows by 2040. Importantly, the plan also establishes new benchmarks by which implementation can be measured.

In May, the passage of HB 1578 – or the Cascading Impacts of Wildfires Act – updated Washington’s existing wildfire prevention regime. The Act will work to improve communities’ response to and preparedness for wildfires, in addition to recovery after fires strike. Under the new law, the Department of Natural Resources will work with other agencies and localities to develop public safety evacuations and perform decadal assessments of areas that are at a higher risk of wildfire than others. Two months later, the legislature passed HB 1181, which requires local communities and governments to plan for climate impacts as part of their required comprehensive planning processes. The law also requires updates to local shoreline master program guidelines, and codifies new definitions of “environmental justice,” “overburdened communities,” “green infrastructure,” and “vulnerable populations.”

In Massachusetts, Governor Maura Healey announced the creation of the ResilientCoasts Initiative in November 2023. According to recent projections, Massachusetts could see upwards of 2.5 feet of sea-level rise by 2050 – causing more than $1 billion a year in weather-related damages by 2070. Led by the newly established Chief Coastal Resilience Officer within the Office of Coastal Zone Management, the purpose of the initiative is to establish resilience districts throughout the state, which will take into account the unique climate impacts these areas face. The initiative supports the creation of nature-based solutions for coastal erosion, assures that resiliency projects take sea-level rise into account, and streamlines permitting processes. There is a strong emphasis on frontline and underserved communities, as 55% of the almost 2.5 million people living in Massachusetts’ coastal communities are people of color, low-income, or individuals facing language barriers. The establishment of the chief resilience officer position and the program is in alignment with the goals set forth in the ResilientMass Plan, which was announced in October.

New Jersey’s Department of Environmental Protection updated the state’s Inland Flood Protection rule in July 2023. The purpose of the rule is to ensure that new investments and construction projects take future projections of rainfall and sea-level rise into account. Using more recent data, the amended rules take a higher precipitation and sea-level rise estimate into account. The state’s Interagency Council on Climate Resilience also released a report documenting their progress in implementing the State’s Climate Change Resilience Strategy. Overall, more than forty regulatory and policy recommendations are included in the document, showcasing the projects and policy action that state agencies have taken since the original Resilience Strategy was released.

3. Local Activities

Many communities across the country are developing, strengthening, and implementing their climate resilience plans. In New York City, Mayor Adams released “PlaNYC: Getting Sustainability Done,” which provides a new strategic climate resilience plan for the city. Developed with input from thousands of stakeholders and recommendations from officials from more than 35 city agencies, the Plan outlines ways in which the city can improve quality of life and the ability to recover from climate hazards through a variety of strategies and recommendations. It describes 32 different initiatives across 10 sectors. Action items include improving tree cover, creating a voluntary housing mobility and land acquisition program, creating a connected network of open spaces, and launching new climate education and training programs.

The Resilient Houston Plan (Houston, Texas) was also updated this year by the Mayor’s Office of Resilience and Sustainability, in coordination with other city officials and community stakeholders. The original plan was published in 2018, and organized resilience action by program: equity and opportunity, mobility and land use, buildings and energy, water, disaster management, heat and nature, materials management, and resilience coordinate. Successes include the planting of more than 200,000 trees throughout the city, with the number of trees now at 31% of the overall goal. Other accomplishments include adopting an ordinance that protects almost 7,500 acres of natural habitat across 26 Houston Parks; continuing to plan and build resilience hubs throughout the city; and supporting the expansion of green stormwater projects.

Tucson, Arizona released its Tucson Resilient Together plan in March of 2023, marking the first time that the city has developed a climate action plan. Federal funds from the American Rescue Plan will be used to “move forward nearly 60% of the actions in the plan, in the first year.” Action items and goals include the expansion of transit services, as well as protected bike lanes and pedestrian paths, the development of an urban heat mitigation strategy in collaboration with other programs like the Tucson Million Trees and Resilience Hub programs, and more, which all work to achieve the goal of carbon neutrality by 2030. It aligns with other planning documents already in place within the city, including the One Water 2100 Master Plan, the Drought Preparedness and Response Plan, and the Move Tucson plan.

C. State ESG Disclosure

On October 7, 2023, California Governor Gavin Newsom signed into law three domestically unprecedented mandates for climate-related disclosures. Each of the laws – SB 253 (Weiner), SB 261 (Stern), and AB 1305 (Gabriel)—apply to specified business enterprises, public or private, that have even a modest connection to California regardless of an actual physical presence in the state. And while the connection to California need only be minimal, the breadth of the required disclosures is for all operations globally.

SB 253 requires that entities doing business in California with annual revenues in excess of $1 billion publicly disclose all of their GHG emissions inclusive of Scope 1, Scope 2, and Scope 3 under the Greenhouse Gas Protocol. The reporting obligation for Scopes 1 and 2 begins in 2026 and for Scope 3 in 2027. The law directs CARB to draft implementing regulations by January 1, 2025, including provision for administrative penalties of up to $500,000 per year of noncompliance. Emissions reports must be affirmed by a “third-party assurance provider.” On or before July 1, 2027, CARB must contract with the University of California or comparable organization to prepare a report on the emissions reported including how emissions compare to California’s adopted GHG reduction and climate goals.

SB 261 requires that entities doing business in California with annual revenues in excess of $500 million publicly report all “climate-related financial risks” and “measures adopted to reduce and adapt to [those] climate-related risk[s] disclosed.” Reports of climate risks must align with the Recommendations Report (June 2017) by the Task Force for Climate-Related Financial Disclosures and any updates thereto. The climate-related financial risk reports must be filed on or before January 1, 2026, and biennially thereafter. Potential administrative penalties to be adopted by CARB may not exceed $50,000 in a reporting year.

Finally, apparently seeking to foster greater transparency and veracity in the voluntary carbon offset market, AB 1305 mandates specified disclosures by entities marketing or selling carbon offsets in California; entities that purchase or use voluntary carbon offsets in support of claims such as “net zero,” “carbon neutrality,” or other related claims; or entities making claims about the achievement of net zero emissions, carbon neutrality, or that has otherwise accomplished “significant reductions to its carbon dioxide or GHG emissions.” Violations of AB 1305 are subject to civil penalties of not more than $2,500 per day, not to exceed a total of $500,000 for each violation. Disclosures pursuant to AB 1305 must be updated no less than annually.

IV. Human Rights and Climate Justice

Between December 2022 and March 2023, three requests for advisory opinions were filed seeking to elicit official judicial declarations regarding the obligations of State Parties in relation to climate change as a human rights concern.

The first was submitted by the Commission of Small Island States on Climate Change and International Law (Commission of Small Island States) before the International Tribunal on the Law of the Sea (Tribunal). Specifically, the Commission is asking the Tribunal to articulate the obligations of state parties to the U.N. Convention on the Law of the Sea (Convention) “to protect and preserve the marine environment” from the negative impacts of climate change such as ocean warming, sea level rise, and ocean acidification as well as the marine pollution that will likely result from these phenomena. The Tribunal’s response will have implications for the free exercise of human rights, particularly for coastal communities, and will influence the interpretation of state obligations under international human rights law. Interested state parties and other invited organizations submitted written statements by June 16, 2023, and the Tribunal heard oral arguments related to the advisory opinion request on September 11, 2023.

In January 2023, Colombia and Chile jointly submitted a separate advisory opinion request to the Inter-American Court of Human Rights (IACtHR) on the scope of state obligations under international human rights law in the context of the climate emergency. The request acknowledges that climate change poses a great challenge across the Americas and the world, disproportionately impacting communities that are geographically and economically vulnerable. The request observes that the IACtHR’s guidance will be crucial to develop climate policies that meet human rights standards under the American Convention and other human rights and environmental treaties.

The petition includes questions across six main areas: (1) the scope of the duty of prevention and the type of policies states should undertake to minimize the harms stemming from climate change in order to meet their human rights obligations; (2) the scope of duties surrounding mitigation and adaptation measures, loss and damage (economic and non-economic), access to information, and climate change migration and displacement; (3) the differentiated obligations of states to protect the rights of children and future generations from climate change; (4) the obligations to provide effective judicial orders and remedies related to climate change; (5) the duty to protect environmental defenders, specially indigenous people and women; and (6) the considerations and principles states should consider when collaborating in line with their common but differentiated responsibilities to confront climate change. The request builds on an 2017 advisory opinion, where the IACtHR found that the right to a healthy environment is a human right. The deadline for amicus submission was December 18, 2023.

In March 2023, the United Nations General Assembly adopted a resolution requesting yet another advisory opinion regarding State obligations with respect to climate change, this time before the International Court of Justice. A multi-year campaign led by Vanuatu and a coalition of youth organizations, including the Pacific Island Students Fighting Climate Change and the World’s Youth for Climate Justice, facilitated this request. The deadline for States to submit statements is January 22, 2024.

In the midst of these advisory opinion requests, the European Court of Human Rights (European Court) fielded three contentious cases on the human rights implications of climate change: Duarte Agostinho et al. v. 33 Member States, Carême v. France, and KlimaSeniorinnen v. Switzerland. The plaintiffs in all three cases allege that States have violated their human rights by causing climate change and its corresponding impacts to their lives, health, or privacy. Although these cases were filed separately, hearings were held for the latter two in front of the European Court’s Grand Chamber on the same day in March 2023. The Grand Chamber heard oral arguments in Duarte Agostinho in September 2023. As of this writing, decisions in all three cases have yet to be delivered.