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Climate Change Law - Fall 2014

Professor Edward P. Richards

This class will be mostly based on public domain materials, which will be posted on this WWW page. Proprietary documents will be posted on the class Moodle site, with a notice posted on this site. Check this site for assignments.

Structure of the Course

The course is divided into four sections:

The scientific basis for climate change

The impacts of climate change on society

Legal mechanisms to mitigate the production of greenhouse gases

The impact of climate change on Louisiana and how it affects legal planning.

The primary materials for section are in the IPCC 2013 report, Climate Change 2013: The Physical Science Basis.

August 19

Read through the Summary for Policy Makers, pages 3-32 of the Summary Volume(Graphics). We will discuss the course and begin the review of the Summary for Policy Makers. The objective of this class is to introduce the basic components of climate change. When we have finished this overview, we will review the Climate Change FAQs that begin on page 119 of the Summary Report.

August 21

Continue discussion of materials from last class. IPCC Graphics with additional slides

Hot off the presses – this paper questions the assumptions behind the existing climate models and whether the earth would be warming or cooling if man were not here:

Liu, Zhengyu, Jiang Zhu, Yair Rosenthal, Xu Zhang, Bette L Otto-Bliesner, Axel Timmermann, Robin S Smith, Gerrit Lohmann, Weipeng Zheng, and Oliver Elison Timm. “The Holocene Temperature Conundrum.” Proceedings of the National Academy of Sciences, 2014, 201407229.

Do not worry about the technical detail, just look at the graphs of the temperature changes over the past 25k years and the conclusions about uncertainty in climate sensitivity.

Humans need not apply – the future of work in the age of automation – a couple of us were talking about this after class. This gets to the core problem of the future economy – cheaper technology/energy does not necessarily do society as a whole a lot of good.

August 26

Continue discussion of materials from last class. IPCC Graphics with additional slides

Climate Change: Evidence, Impacts, and Choices – National Academies Press

You will need to create a free account to download this. The NAP is tremendous public resource which you should become familiar with. We will use more of their work in this course. Read through this for class, it continues our overview of climate change.

Evaluating hurricane tracking models – this is a good discussion of how meteorologists use multiple models to improve the accuracy of hurricane tracking. We have gotten pretty good at predicting the track, but the models are not very good at predicting the strength.

Breaking news – a much better analysis of where the retained heat is going. (Plain language summary.) Slides from Science 2014 Aug 345(6199) 860-1

Breaking new – methane leaks from the ocean floor – we will look at the pictures.

August 28

Finish our introduction to basic mechanisms of global warming. Finish reading the NAP piece from last class and come armed to discuss the mechanisms of climate change and what you do not understand.

IPCC, 2014: Summary for policymakers. In: Climate Change 2014: Impacts,Adaptation, and Vulnerability. – This is the summary of risks posed by climate change. It is a companion to the document we have already reviewed on whether there is climate change.

The last topic I want to introduce is existing extreme weather – are we seeing increased damage from storms because of worse storms or more development in their path?

Breaking news – Greenhouse Gas Emissions Are Growing, and Growing More Dangerous, Draft of U.N. Report Says

General Circulation Models of Climate – this is a great history of weather modeling and forcasting, with a focus on the development of climate modeling. Not required, but a good read for the interested.

September 2

Comic relief – Climate Name Game

The Washington Post is Running A Series Of Editorials On The “Existential Threat” Of Climate Change

The mystery of the moving rocks in Death Valley solved!

What are the global sources of GHGs?

GHGs in the US

The US Electricity Sector

Introduction to Administrative Law

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – the global warming case. This is the critical case on GHG regulation in the US. We are going to read it closely, it is a complex administrative law case. For those of you who have not had administrative law, we will spend some time on the necessary background on Chevron deference. This discussion will likely spread over more than one class. This case will be critical as the courts review the about to be proposed GHG regulations on power plants. Read it carefully. Use this study guide as you read the case: Mass v. EPA – study guide

Mass v EPA – Slides

Oral Argument – text of argument

 Standing – Lujan paragraph 18

September 4

Discuss Mass v. EPA from last class.

American Elec. Power Co., Inc. v. Connecticut, 131 S.Ct. 2527 (2011)  – this is the follow on case looking at standing to bring federal common law claims. The court split 4-4 on standing – what are the issues and how will this effect climate change litigation?

One solution to global warming

September 9

Breaking news – Record Greenhouse Gas Levels Impact Atmosphere and Oceans

Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012) aff’d, 718 F.3d 460 (5th Cir. 2013) – (affirmation) – read both cases and the recusal story. This our first local climate change case.

Supporting the regulations on GHGs:

http://www.epa.gov/climatechange/endangerment/index.html – This is the EPA page on regulatory process.

Look at these two documents:

Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act (PDF)

Technical Support Document for the Findings (PDF)

These supported the regs at issue in this case:

Coalition for Responsible Regulation, Inc. v. E.P.A., 684 F.3d 102 (D.C. Cir. 2012)

We are going to read Parts I and II (through paragraph 80) for this class. (We are skipping the tailoring rule.)  Skim the two endangerment findings above to see how what was at issue in the case, and look specifically at the parts that are discussed in the case. This is the core case for regulation of GHGs, so read carefully. This discussion will likely continue to the next class.

 

September 11

What is a SIP?

Coalition for Responsible Regulation, Inc. v. E.P.A.- cheat sheet

Video cited in the Court’s Opinion

Climate Change Litigation Chart

Finish reading: Coalition for Responsible Regulation, Inc. v. E.P.A., 684 F.3d 102 (D.C. Cir. 2012) Look at the tailoring rule issue carefully – this is at the heart of the EPA deciding which industries are going to bear the burden of CO2 reductions.

From last class – I got the correct version of the Comer case loaded on the WWW site. This one has the bookmarks and highlights.

September 16

Did the EPA win or lose?

UARG Study Guide – use this to get up to speed for class.

DEQ’s Hatch says federal proposal to cut power plant emissions would cripple Louisiana economy

Util. Air Regulatory Grp. v. E.P.A., 134 S. Ct. 2427, 189 L. Ed. 2d 372 (2014) – Court limits the expansion of GHG regs under NAAQS. (I brought the formatting problems to attention of Versuslaw and they replaced the case with a properly formatted version.) official version from the court – 12-1146_4g18

September 18

image001

The Top 10 Reasons Why EPA’s Powerplant Rule is like Obamacare

 Some questions we will look at in class

Revised

We begin the analysis of EPA’s approach to regulating carbon from new and existing power plants. We are going to review the regulatory impact analysis for the proposed rules. This is a long and complex report. You need to skim it to get an idea of how it is organized. We will read the executive summary closely for class. Dip into the report as necessary to make sure you understand what is in the summary. This document, and the supporting regs, are the core of the Obama GHG strategy.

Regulatory Impact Analysis for the Proposed Carbon Pollution Guidelines for Existing Power Plants and Emission Standards for Modified and Reconstructed Power Plants – base case is Table 3-2.

Executive Summary

The Impact of One Gallon of Gasoline

It seems impossible that a gallon of gasoline, which weighs about 6.3 pounds, could produce 20 pounds of carbon dioxide (CO2) when burned. However, most of the weight of the CO2 doesn’t come from the gasoline itself, but the oxygen in the air.

When gasoline burns, the carbon and hydrogen separate. The hydrogen combines with oxygen to form water (H2O), and carbon combines with oxygen to form carbon dioxide (CO2).

CO2 molecule with one carbon atom (atomic weight 12) and two oxygen atoms (atomic weight of 16 each)A carbon atom has a weight of 12, and each oxygen atom has a weight of 16, giving each single molecule of CO2 an atomic weight of 44 (12 from carbon and 32 from oxygen).

Therefore, to calculate the amount of CO2 produced from a gallon of gasoline, the weight of the carbon in the gasoline is multiplied by 44/12 or 3.7.

Since gasoline is about 87% carbon and 13% hydrogen by weight, the carbon in a gallon of gasoline weighs 5.5 pounds (6.3 lbs. x .87).

We can then multiply the weight of the carbon (5.5 pounds) by 3.7, which equals 20 pounds of CO2!

20,000 miles a year at 20 mpg = 1000 gallons = 10 tons of  CO2

 

September 23 & 25

We will not meet class. Class will be made up as per our discussion.

September 30

Legal Memorandum for Proposed Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units

This is a long document and we will likely look at it for two classes. This reg, and the tailpipe rule we have already seen, are, at this point, the core of the federal response to climate change. This reg will be hotly contested. This memorandum and the rule was revised after the Supreme Court Case we read about triggering and tailoring. We will read it in detail because this is will be the climate change law battle ground until such time as Congress passes definitive legislation or a new president withdraws or changes this regulation.

Largest Climate-Change March in History Unlikely to Convince Idiots

Earth Has its Warmest Summer and August on Record

The EPA Regulation on GHGs from Existing EGUs – comment period now extended to Dec 1. We are going to start with the reg itself, which begins on 34950. There are only 8 pages of regulation, supported by 122 pages of analysis: 34851-34855. We are going to read the reg itself, along with the supporting legal memorandum:

UN Climate Summit and Rising Sea Level

October 2

The downside of high MPG engines

Storm Surge Reduction by Wetlands

Legal Memorandum from last class – what is the justification for reaching beyond the smokestacks to enforcing energy conservation requirements?

This case attacks the use of 111(d) at all for this rulemaking and seeks to enjoin the rulemaking itself. Is it a legitimate attack? Stopping a rulemaking, as opposed to later allowing the rule to be attacked, is very unusual. The court has asked the EPA to answer, rather than dismissing the case.

In re: Murray Energy Corporation, Docket No. 14-01112 (D.C. Cir. Jun 18, 2014)

This is an attack on the rulemaking itself, arguing that an inconsistency between the House and Senate versions of the applicable Clean Air provisions makes it impossible for EPA to make these rules.

West Virginia, et. al amicus

Order for EPA to answer the complaint

————–

Bagasse popular feedstock in biofuel – http://theadvocate.com/news/10406397-123/bagasse-popular-feedstock-in-biofuel

Global Carbon Budget 2014 – slides

 

October 7

Alabama state officials: We won’t comply with the EPA because God gave us coal

Thirst Turns to Desperation in Rural California

http://www.nytimes.com/2014/10/03/us/california-drought-tulare-county.html

Grid More Vulnerable Than Thought

Alternatives to direct regulation – Cap and trade versus Carbon Tax

To Tax or Not to Tax: Alternative Approaches to Slowing Global Warming

What is the base year for the Kyoto Protocol?

Why is the base year critical in these agreements based on internal reduction standards?

How were developing countries handled in the Kyoto Protocol?

Carbon in a ton of coal

5 Year Coal Prices - Coal Price Chart

How would a carbon tax effect coal versus natural gas?

What are the limitations on the lessons from the sulfur dioxide and chlorofluorocarbon cap and trade systems?

The hole in the Montreal Protocol

 What about green offsets? What is the time factor problem?

Blue carbon

 What are the social costs and how/should we offset them?

William Chameides & Michael Oppenheimer, “Carbon Trading over Taxes,” Science (23 March 2007) 

Janet Peace & Robert Stavins, “In Brief: Meaningful and Cost-Effective Climate Policy: The Case for Cap and Trade,” Pew Center on Global Climate Change (June 2010)

What is the problem with setting the auction prices for permit?

What did we do with the radio spectrum when we started the FCC?

What is the rent creation problem, i.e., the artificial shortage problem?

How can you fairly allocate permits internationally and then police the market?

What about in totalitarian governments?

October 14

Continue our discussion cap and trade v. carbon tax

Ian Parry, “Should We Abandon Cap & Trade in Favor of a CO2 Tax?” RFF Resources (Summer 2007),

Kathryn Harrison, “The Political Economy of British Columbia’s Carbon Tax,” OECD Environment Working Papers, No. 63 (2013)

First full scale carbon capture facility goes online

New Hampshire’s List of Questions (due 8/21) for 8/26 10:00 call with EPA on 111(d)

The Biggest Methane Leak in America Is in New Mexico

 

 

October 16

The make-up class is the 12:40 speaker for ELS – Tim Osborn. We will adjourn class a few minutes early because I have to meet him before the presentation.

Fraud in renewable energy credits – just skim as an example of why it will be hard to enforce carbon regulation.

U.S. Shale Oil Output Seen Growing Even as Prices Drop

U.S. Oil Producers May Drill Themselves Into Oblivion

Natural gas as a bridge to nowhere

Work through the basics of cap and trade so we can talk about how to make a program work and the issues it would raise.

Better references on EPA financial incentive programs

Work through the links on these pages to figure out how the programs work:

http://www.epa.gov/captrade/

Look at the specific SO2 and NOx programs here:

http://www.epa.gov/airmarkets/progsregs/arp/index.html

 Carbon Markets 15 Years after Kyoto: Lessons Learned, New Challenges – lots of info here, we will probably not finish this during class.

 

October 21

Carbon Markets 15 Years after Kyoto: Lessons Learned, New Challenges (from last class) This is a good review of the different carbon trading programs. We will review the different programs and the issues they present.

Stephen Davis et al., “Rethinking Wedges,” Environ. Res. Letters (2013) Beginning to think about where we go from here.

October 23

Main campus lecture on Friday about super volcanoes – these are a serious driver of climate

Globola

Crazy idea of the day

The continuing sage of a bad bio-fuels policy

 The Royal Commission on Geoengineering – This is a fairly fast read and is a great overview of the geoengineering issues. We will spend a class on geoengineering to end this part of the course. Geoengineering is the deus ex machina that haunts the climate change treaty world because it seems to offer a lower cost, lower disruption solution to global warming. The thinking is that if things get really bad, we can buy time with geoengineering.

October 28

Kahan, Dan M., Climate Science Communication and the Measurement Problem (June 25, 2014). Advances Pol. Psych., Forthcoming. Available at SSRN: http://ssrn.com/abstract=2459057

Read this carefully. While the author does use some survey research jargon, he is good at explaining what it means so that the general reader can get the gist of the concept. This article provides critical insights into what it means to say that people believe or do not believe in scientific concepts, and how that should influence how we educate about those concepts. In our case, we are looking  for insights into to how we help clients understand that they have to plan for the impacts of climate change, even if they do not “believe” in climate change.

October 30

Media for today’s class

Hurricane Betsy Video

LBJ’s Response- http://whitehousetapes.net/exhibit/lbj-and-response-hurricane-betsy

Look carefully at the South Florida project described as a success at the end of the Kahan paper. Is this a realistic appreciation of the risks faced by these communities, or is this really a denial of risk and a perpetuation of their cultural beliefs?

Task Force on Federal Flood Control Policy. A Unified National Program for Managing Flood Losses: Communication from the President of the United States Transmitting a Report. Washington, D.C.: U.S. G.P.O., 1966.

This is the genesis of the modern flood control programs. This was the report produced in the wake of Hurricane Betsy in 1965, which flooded New Orleans almost as completely as did Katrina. This is a relatively long and painful read, but I think it is critical to read primary documents when we are trying to understand critical policy choices. We are not reading this closely like a code section, but are reading it for the risks that were recognized and the policy recommendations. These programs and the accompanying National Flood Insurance Program shaped modern Louisiana, as well as all other coastal and river areas subject to flooding.

November 4

Breaking news – CLIMATE CHANGE 2014 – SYNTHESIS REPORT, November 2014

Climate Change (Federal Actions)

 Discuss luncheon presentation from last Thursday (if you want to view these, use slide show mode or you miss the animations)

Suing the federal government for flooding

Introduction to the Federal Tort Claims Act:

Dalehite v. U.S., 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) – history of the FTCA. Read paragraphs 28-34.

Allen v. U.S., 816 F.2d 1417 (10th Cir. 1987), Certiorari Denied by Allen v. U.S., 484 U.S. 1004 (1988) read paragraphs 12-41.

Hurricane Betsy

Hurricane Betsy Video – from last class

Graci v. United States, 456 F.2d 20 (5th Cir. 1971) – skim for the discussion of how the court distinguishes the FCA of 1928 immunity.

Graci v. U.S., 435 F.Supp. 189 (E.D.La. 1977) (short case, just finds that the Corps wins because it exercised discretionary authority)

Central Green Co. v. United States, 531 U.S. 425 (2001) – the key Supreme Court case on Flood Control Act immunity for dual use projects. Read paragraphs 41-45.

Review slides for FTCA and FCA

November 6

IPCC Final Report: We’ve Blown Two-Thirds of Our Carbon Budget – Exciting highlights buried in the report.

Climate change in Alaska

In re: Murray Energy Corporation, Docket No. 14-01112 (D.C. Cir. Jun 18, 2014) – EPA Reply Brief – back to hard law. Start reading on page 21.

Carry over the material from last class that we did not get to.

http://www.theguardian.com/environment/2014/nov/03/un-investigate-wikileaks-claims-uk-spies-infiltrated-climate-talks

November 11

Home sweet home

New storm surge map predicts worst-case scenarios for south La.

Slides – Katrina

Review slides for FTCA and FCA – from previous class

We will finish flood law from last time. But it is now time to get private law as it applies to clients. The first task is for you read about how the courts construe insurance policies in general and specific exclusions for flood damage in specific in Louisiana. Read through these cases and be prepared to talk about the law:

LA upholds flood damage exclusion in insurance policies – Barbara Landry v. Louisiana Citizens Property Ins. Co., 983 So.2d 66 (La. 2008) – Court rules that insurers may limit payments in a wind and water case to the damage that is caused by the wind.

LA uses common sense definition of flood in finding that policies do not cover Hurricane Katrina flood damage – Sher v. Lafayette Ins. Co., 988 So.2d 186 (La. 2008)

5th Circuit construes flood exclusion in homeowner’s policies after Katrina – In re Katrina Canal Breaches Litigation, 495 F.3d 191 (5th Cir.2007) – cert denied.

Katrina materials for your reference only (you do not need to read these):

In re Katrina Levee Breaches, 5th Cir, Round II (The very rare situation where the 3 judge panel overrules itself, rather than the case going on to en banc review.) (District court opinion for reference, you do not have to read this: In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) Final opinion and appendix. )

Edward P. Richards, Essay, The Hurricane Katrina Levee Breach Litigation: Getting the First Geoengineering Liability Case Right, 160 U. PA. L. REV. PENNUMBRA 267 (2012)

November 13

Insurance and Climate Change: Do Governments Have a Duty to Protect Property Owners?

New climate change goals unveiled by U.S., China

The politics of the new climate change goals

Today we we start sorting out the National Flood Insurance Program. We will start with official FAQ

Answers to Questions about the National Flood Insurance Program

National Flood Insurance Policies

Background info to use in class discussion

Reading flood maps

Flood zone definitions

Dwelling Form June 2014 – read this policy

For next class – General Property Form June 2014 – Next class be prepared to explain the difference in coverage between this policy and the dwelling policy.

Resources

Recommended Residential Construction for Coastal Areas Building on Strong and Safe Foundations, FEMA P-550, Second Edition/December 2009

Climate Change and Existing Law

November 18

Surging Seas Interactive Flood Map

Review policies from last class. You want to figure out what is covered and what is excluded so you can determine the gaps.

Rebuilding New Orleans after Katrina

FEMA Recovery Guidance  Advisory Base Flood Elevation for New Orleans – 2006 – Presentation

Katrina Graphics page

FEMA reference materials for rebuilding New Orleans after Katrina

Presentation: Understanding FEMA’s Rate-Setting Methods for the National Flood Insurance Program

CBO, The National Flood Insurance Program: Factors Affecting Actuarial Soundness, (2009) – technical review by CBO that the presentation is based on. This includes useful information on the private market.

 More resources

A Comparative Look At Public Liability For Flood Hazard Mitigation

If you are interested in how the state lied about pre-Katrina emergency preparations, see:

Southeast Louisiana Catastrophic Hurricane Functional Plan, August 6, 2004 (wrap-up) in which Louisiana promised FEMA that it was ready for a major hurricane.

Preparing For A Catastrophe: The Hurricane Pam Exercise Hearing Before The Committee On Homeland Security And Governmental Affairs, United States Senate, One Hundred Ninth Congress, Second Session, January 24, 2006.

Southeast Louisiana Multiregion Hurricane Preparedness Functional Exercise (FE) After Action Report/Improvement Plan (AAR/IP) – CYA from the state.

This is why I am do not think we are really much better prepared than last time.

November 20

Burn trees and save the world – EPA report on biomass fuel

The huge, hidden cost of protecting homeowners from the rising sea

Coal Rush in India Could Tip Balance on Climate Change

USACE 2014 Climate Change Adaptation Plan Released

Continue discussion from last class.

Be prepared to discuss counseling issues for different client groups. Who are your potential clients? What are their risks – not the physical risks from extreme weather, but the consequences of those events.

November 25

Finish discussion from last class, if necessary.

 

 

 

 

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