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Climate Change Law - Fall 2015

Professor Edward P. Richards

August 18

All the assignments will be posted to this blog. Check before class for breaking news updates. I reserve the right to use class participation points.

Seating - this is a small class in a big room. Please sit toward the center on the first few rows.

Something to watch before class:

From Season 3, Episode 3 of Newsroom:

https://www.youtube.com/watch?v=XM0uZ9mfOUI

See also: http://www.motherjones.com/blue-marble/2014/11/climate-desk-fact-checks-aaron-sorkins-climate-science-newsroom

Where are we on the continuum between this and climate change denial?

Reading assignment.

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 through page 14.

We are going to start by thinking about how people come to different conclusions looking at the same facts. This will introduce the issues we face in thinking about the legal issues posed by climate change.

Materials for class Discussion

Overview of Greenhouse Gases

What is Ocean Acidification?

Introduction to Sea Level Rise on the Louisiana Coast

The key uncertainty - climate sensitivity.

A typical climate science paper.

August 20

Why the Saudis Are Going Solar 

Progress Report: Subsidence in the Central Valley, California

Finish the Kahan article. The second part gets into the significance of individuals' cultural identification. Think about what this means. Is belonging to a religious group the same as belonging to a political party or ideological group?

Think about how you would apply this information cultural cognition to Louisiana and our extreme weather and climate problems when talking to clients.

“Quantifying the consensus on anthropogenic global warming in the scientific literature.”

Last Week Tonight with John Oliver: Climate Change Debate (HBO)

August 25

News

July 2015 was warmest month ever recorded for the globe.

Solar electricty challanges natural gas on price

Making money on climate change

Kemper 'clean coal' project shows the costly perils of being 'first of its kind'

How a Volcanic Eruption in 1815 Darkened the World but Colored the Arts

IPCC Home - for reference

What is the IPCC? - read

History of the IPCC - read

Climate Change 2014 Synthesis Report – Fifth Assessment Report - Read pp. 35-56

IPCC_Graphics_Topic_1

IPCC Graphics with additional slides (Unabated planetary warming and its ocean structure since 2006 - why there is no pause in warming.)

This is the baseline summary document on climate change. We will work our way though it so that you will have an overview of the science and the level of certainty for each projection. You do not have to memorize this. I will lecture of a lot of it, but we will discuss the implications as we go so you should read through it.

August 27

Assignment Change!! No assignment. We will get back to the IPCC next week. Since the 10 anniversary of Katrina is this weekend, it seems appropriate to look at the problems of southern LA and New Orleans in the face of climate change now, rather than later in the course.

News

Louisiana Governor Jindal Officially Declares Coastal Restoration a Denial of Climate Change

Best-ever levee system is here to protect property, not lives, experts warn

Background on the hurricane risk for New Orleans

Natural Cycles and the Mississippi Delta

Should Katrina have been a surprise? – Washing Away

The Hurricane Pam Exercise, in which Louisiana promised FEMA that it was ready for a major hurricane in 2004.

Hurricane Pam Response Plan

If Georges had not turned.

September 1

News

Obama Makes Urgent Appeal in Alaska for Climate Change Action

Finish discussion from last class. - Natural Cycles and the Mississippi Delta

Rising sea level threatens coastal restoration, New Orleans levees, scientists say - it is not just me.:-)

Rising Seas

https://youtu.be/9PUmKHBtnlA

Chris McLindon - Rethinking Coastal Restoration: Mechanisms of Subsidence in the Louisiana Coastal Plain - annotated geology slides that you can review on your own for more details than we will review in class.

3-D views of faulting and land loss

Diversions: Our Path Forward

September 3

Read topics 2 and 3 in the IPPC summary report we started last week.

Continue discussion from last class.

Another diversion story

Crazy ideas, but interesting pictures

Golden Meadow Fault Subsidence

Diversion Basics – Notes for the Expert Panel, 10 AM, Tuesday, 28 October 2014, Baton Rouge by R. Eugene Turner

An excellent overview of the science behind river diversions and why they do not build land. The starting point for learning about diversions.

 

September 8

Clip on Permafrost Melting in Alaska

MRGO Restoration

Louisiana Coastal Restoration Plans

A DELTA FOR ALL: The Baird Team - is this something new? Work through this and see what you think.

http://www.ustream.tv/recorded/71763595 - NASA phone briefing (with slides) on sea level rise.

You should have finished reading topics 2 and 3 in the IPPC summary report we started last week.

IPCC Materials

September 10

Are the Syrians the first official climate change refugees?

Finish the Summary report. The objective in this reading is to match up the amount of GHGs produced for the different levels of temperature change and pH change in the oceans. Look at the gigatons, not just the atmospheric concentrations. This is the data we need as we go forward and start looking at legal strategies for control of GHGs, because control is about reducing the production, which is measure in tons. Also think about the timeframes - why does the problem get much harder every year that goes by without significant global reductions in GHGs? Given that even if the meeting this fall were to come up with massive commitments to reductions over the next 30 years, is this too late to avoid 2 degrees or more of heating?

Yet another sediment tale

IPCC Graphics Topics 2&3 Edited

Uncertainty issues

How long does CO2 stay in the atmosphere? 5 years or 200? Does the residence time increase or decrease with concentration? (typical article)

What is the climate sensitivity, i.e. how much temperature increase per unit of CO2?

How does the ice respond? Gradual melting, or catastrophic shelf failure?

How does the weather respond?

Jargon

Representative Concentration Pathways RCPs - shorthand for different effective GHG levels, reduced to CO2 equivalence.

Mitigation - reduce GHG production and/or remove GHG from the atmosphere

Adaptation - move inland, develop low water technologies, better insulated buildings to deal with heat, etc.

Key Policy Questions

Why does what we have to get more painful each year we delay?

Are there climate change winners and how does that effect policy?

What about using the money that would be spend on mitigation for adaptation? (This gets into the net present day value issues.)

Can mitigation be good for the economy? (This gets into Keynesian economic stimulus issues and the nature of jobs.)

September 15

To help climate migrants, Bangladesh takes back land from the sea

Ricarda Winkelmann et al., Combustion of available fossil fuel resources sufficient to eliminate the Antarctic Ice Sheet, 1 Science Advances (2015).

Continue our discussion of the key climate policy questions:

Key Policy Questions

Why does what we have to get more painful each year we delay?

We mostly worked through this one last class. We will recap to make sure you understand the core issues.

Are there climate change winners and how does that effect policy?

What about using the money that would be spent on mitigation for adaptation? (This gets into the net present day value issues.)

How do the uncertainty factors in predicting the rate and nature of climate change impacts affect this question?

Can mitigation be good for the economy? (This gets into Keynesian economic stimulus issues and the nature of jobs.)

Using sea level rise as the key problem, how do uncertainty and timeframe affect our decisionmaking?

Think about coastal LA and NO, Miami, and New York City.

Use the Rising Seas Map to look at how different elevations affect these areas.

September 17

Comic relief – Climate Name Game

More detail on the alternatives to the Coastal Master Plan

Naia Morueta-Holme, Kristine Engemann, Pablo Sandoval-Acuña, Jeremy D. Jonas, R. Max Segnitz, and Jens-Christian Svenning. Strong upslope shifts in Chimborazo's vegetation over two centuries since Humboldt PNAS 2015 ; published ahead of print September 14, 2015, doi:10.1073/pnas.1509938112

Republican candidates are prodded to acknowledge climate change in 2nd debate

Moderate House Republicans call for action ahead of papal visit

Introduction to Rulemaking

These are modules I wrote for administrative law. While they have reading assignments, they are written as free standing outlines of the key material. They will give you a framework for my running through the issues in class. Please read through them before class.

Introduction to Administrative Law

Module 18 – Introduction to Rulemaking

Module 19 – Rulemaking: When do you need notice and comment?

Module 20 – The Procedures of Notice-and-Comment Rulemaking

The Reg Map for Informal Rulemaking

September 22

Clean Air Act Definitions

Let’s Cut All Energy Subsidies and Start Taxing Pollution

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) - Mass. v. EPA Slides

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. You have seen this in Constitutional Law as a standing case. Think about whether that discussion got the right standing issue. To answer this question, look very carefully at what the plaintiffs are trying to get standing for.  Read the case carefully. Use this study guide as you read the case: Mass v. EPA – study guide

September 24

One solution to global warming

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?

pp. 11647=11657 (majority opinion)

HTML Version - American Eletric Power Company, Inc. v. Connecticut, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011)

Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012)

Map

Relocation?

HTML Version -  Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012)

September 29

The Pope and Climate

Overview of the Encyclical Laudato si'

This is the Vatican summary of the encyclical. It will be enough for our discussion. (The full document)

Commentaries

The Pope & the Market

Biophysical limits, women's rights and the climate encyclical (link will only work on campus or with the proxy)

Breakdown of U.N. Sustainable Development Goals

These were adopted as part of the Pope's visit.

Limited Progress Seen Even as More Nations Step Up on Climate

The data referred to in the article

News

What Can China Achieve with Cap-and-Trade? - what is China's game?

October 1

News

Getting to $100 Billion in Climate Change Aid - http://nyti.ms/1KPPdfR

Al Gore and Flooding in Miami, on my!

Jeb Bush's Energy Plan for America

Search on the word climate to find his position on climate change.

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

This case deals head on with state law nuisance claims for climate change damages caused by defendant's emissions making Hurricane Katrina worse. Read this carefully and see if you can figure out what the Fifth Circus proceedings mean. This presents several good procedural questions.

Before EPA could make a rule on GHGs and automobile emissions as allowed by Mass v. EPA, it had to publish the endangerment finding that triggers the act. Look through the FR posting to see what had to go into an endangerment finding, and read the Executive Summary of the Technical Support Document. We will discuss these in class because they set up the next case, as well as the power plant rules.

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

Technical Support Document for the Findings (PDF)

October 6

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. official version from the court – 12-1146_4g18

UARG Study Guide

This case sets the stage for the GHG regs for power plants. It gets into the guts of the CAA and is difficult to sort out. I have provided a study guide to help you read the case so that we can work through it in class.

 News

Hurricane Joaquin Forecast: Why U.S. Weather Model Has Fallen Behind http://nyti.ms/1L0KJmJ

Devastating Rains in South Carolina

The Science of Recurrence Intervals

What Is An Atmospheric River? And Why Is It Relevant To Joaquin And This Weekend's Rainfall?

Texas regulator says crafting state plan 'waste' of time

India Announces Plan to Lower Rate of Greenhouse Gas Emissions

School News

Academic advising (in advance of registration for spring 2016 classes) is scheduled for the following days, from 10:15 a.m. to 1:45 p.m. All sessions will be held on the first floor of the library.

Tuesday, October 6

Wednesday, October 7

Wednesday, October 14

Thursday, October 15

October 13

News

What should Volkswagon tell us about the risks of elaborate trading systems?

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)

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

What are the key pros and cons of a carbon tax and a cap and trade system.

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 15

News

Sea to swallow New Orleans eventually regardless of carbon limits, scientists say - you heard it here first

Rating the States on Their Risk of Natural Gas Overreliance

Fitch: Final Clean Power Plan Shifts Burden Among US States; Compliance Challenges Remain

The final rule

Clean Power Plan Final Rule – August 2015 - for reference only - you do not need to read this.

These are short EPA fact sheets on different aspects of the plan. Read through these for class

Clean Power Plan Blog Post: Power Plant Compliance and State Goals

EPA Fact Sheet: Clean Power Plan – Built on a Solid Legal & Scientific Foundation - basic risks

EPA Fact Sheet: Clean Power Plan By The Numbers - CBA analysis

EPA Fact Sheet: Overview of the Clean Power Plan Final Rule - structure of the grid and building blocks of the plan

EPA Fact Sheet: Clean Power Plan and the Role of States - mechanisms for states to cooperate

EPA Fact Sheet: Energy Efficiency in the Clean Power Plan - how to work energy efficiency into the plan

October 20

Continue our discussion of the Clear Air Regs.

Final Rule - Carbon Pollution Emission Guidelines for Existing Stationary Sources - State Rate Table

Final Rule - Carbon Pollution Emission Guidelines for Existing Stationary Sources - State Mass Table

California Carbon Dashboard

Solar at Grid Parity in Utah, A Coal State With No Renewable Standard

Solar And Wind Catch Up With Coal, Natural Gas Across The Globe

In India, climate change takes a back seat to coal-powered development

Regional efforts

October 22

News

Price carbon — I will if you will (available on campus)

California slows down on GHG reductions in the future

CPRA drops lowest river diversions

Levee board member reminds us of what levees really do

We are going to discuss three short think pieces from Republicans and the ultimate nerd. Come to class prepared to talk.

Why We Support a Revenue-Neutral Carbon Tax - a different take on what to do with the proceeds of a carbon tax.

Why Republicans should care about climate change - from Hank Paulson, Bush II Treasury Secretary - Is China our natural partner in climate change innovation?

An Interview with Bill Gates on the Future of Energy - The ultimate Silicon Valley response - does it make sense?

H.R. 2454, The American Clean Energy and Security Act of 2009, 111th Congress (Waxman-Markey) - This was the climate bill that passed the house but did not pass the Senate before the Republicans captured the House. Read the table of contents and skim it a bit so we can discuss what they attempted to do.

October 27

News

CA Bullet Train Cost and Geology Issues

Start-Ups Take On Challenge of Nuclear Fusion http://nyti.ms/1KznZcR

Claudia C Faunt & Michelle Sneed, Water availability and subsidence in California’s Central Valley, 13 San Francisco Estuary and Watershed Science (2015)

Is this our future?

The Final Rule

40 CFR Part 60 - Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units; Final Rule

The first challenge to the Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units; Final Rule

Assignment

Introduction to the Federal Tort Claims Act:

FTCA-Climate-2015-I - Slides

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.

Introduction to the Flood Control Act of 1928

National Mfg. Co. v. United States. Great Western Paint Mfg. Corp., 210 F.2d 263 (8th Cir. 1954) - 702 - para 16, 32

Hurricane Betsy

Remembering Betsy: WVUE-TV 09/1990 - watch this outside of class - pay special attention to the levee comments at about 12:30 and the ending comments at 27.

LBJ’s Response- http://millercenter.org/presidentialclassroom/exhibits/lbj-and-the-response-to-hurricane-betsy

October 29

Flood Control Act and Hurricane Betsy - slides

Natural Cycles and the Mississippi Delta - slides for MRGO geology.

Graci v. United States, 456 F.2d 20 (5th Cir. 1971)

The Hurricane Betsy case. How does the court get past Flood Control Act immunity? What is the Louisiana law it uses for the liability phase of the FTCA analysis? What is remanded?

Graci v. U.S., 435 F.Supp. 189 (E.D.La. 1977)

What did the court decide on remand and how might this be relevant to the Hurricane Katrina Cases

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. Think about how this modifies Graci.

November 3

Slides – Katrina

Katrina Images - scroll down to the last four galleries

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.

In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) Final opinion and appendix.

District court opinion for reference, you do not have to read all of this, but you might skim it as you read the appeals decision.

November 10

Surging Seas

Learning from Life Insurance: Lessons for Structuring Insurance for Properties Facing Progressive Climate Risk, Boston College School of Law, November 2015.

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 12

NOAA Coastal Flood Mapping Tool (beta)

Introduction to the NFIP

FEMA - Dwelling Form June 2014 – this is the actual residential flood insurance policy (Standard Flood Insurance Policy Forms - Current)

Answers to Questions about the National Flood Insurance Program - this is the official FAQ on the policies and the program - par. 42, et seq.

Why is grandfathering a problem with sea level rise?

Read these and figure out what is covered, what is excluded, and what the zones mean. This is real lawyer work.

Digital flood maps - look up your house or apartment and other places you are familiar with. See how the flood zones work.

Paper Flood Maps - FEMA Flood Map Portal

Sample Flood pre-digital Maps: Baton RougeNew OrleansVenice

November 17

The wind v. water problem from last class

Sher v. Lafayette Ins. Co., 988 So.2d 186 (La. 2008)

Read paragraphs 45-72.

Rebuilding after Katrina

Effective administrative delay by the locals

FEMA Region VI Updating Flood Maps in the Greater New Orleans Area

Floodplain Management - City of New Orleans

Preliminary DFIRM - notice the negative base elevations.

FEMA - Hurricane Katrina: FLOOD RECOVERY GUIDANCE Frequently Asked Questions

FLOOD RECOVERY GUIDANCE - New Orleans post Katrina - Frequently Asked Questions - Slides from FEMA for discussion

Flood insurance reform and reform roll back - Insurance Information Institute: Flood Insurance Issues, November 2015

Analyzing the losses under the NFIP: Carolyn Kousky & Erwann Michel-Kerjan, EXAMINING FLOOD INSURANCE CLAIMS IN THE UNITED STATES: SIX KEY FINDINGS, Journal of Risk and Insurance (2015). - skim the article, but read carefully starting at p. 23, DISCUSSION AND POLICY IMPLICATIONS.

People in flood zones do not appreciate the potential losses.

People outside flood zones do not understand that they can flood.

pre-FIRM properties are still a big risk (60% of claims on <50% of policies).

Linked risk - no diversification of risk, one storm uses up decades of premium income.

Flood insurance and climate change - a global perspective: Jessica Lamond & Edmund Penning-Rowsell, The robustness of flood insurance regimes given changing risk resulting from climate change, 2 Climate Risk Management 1–10 (2014).

France - we are not the only ones who screw this up

Slides: Learning from Life Insurance: Lessons for Structuring Insurance for Properties Facing Progressive Climate Risk, Boston College School of Law, November 2015.

Sample counseling issues around flood insurance: Commercial Flood Insurance: What Could we have missed?

November 19

Hot off the press!

Doyle, T.W., Chivoiu, Bogdan, and Enwright, N.M., 2015, Sea-level rise modeling handbook—Resource guide for coastal land managers, engineers, and scientists: U.S. Geological Survey Professional Paper 1815, 76 p., http://dx.doi.org/10.3133/pp1815.

News

Failed 2008 Cooling Prediction Shows Short-Term Climate Forecasts Remain a Bad Bet http://nyti.ms/1kCx8wR

Senate Blocks Obama’s Climate Change Rules http://nyti.ms/1ltFQNY

Legal stakes are complicated for Exxon Mobil in climate change controversy

Jon Kusler, Government Liability and Climate Change: Selected Legal Issues Related to Flood Hazards (2014).

Read pp. 1-19. While we found that the federal government is mostly immune for flooding related lawsuits, this is not true of the states. This is a quick overview of the basic theories that have been used to sue state and local governments. (More information from this group.)

Exam Notes

I will post any questions I get about the exam here. Check back periodically.

------------------------

> I didn't have a question about the exam itself, but I do have a
> substantive question about something we covered in class. I'm not sure
> if we can still ask substantive questions since the exam has been
> given out (but if it's ok to answer) -- I was still a little confused
> about the holding in Util Air Reg. v EPA.
>
> I know that the court held that the EPA could regulate greenhouse
> emissions for power plants, but could not regulate small stationary
> sources -- but I was unsure about what this meant going forward? I
> have all of the information on BACT, and NAAQs in my notes and how the
> court didn't think that the regulation of greenhouse gases fits into
> this regime but I was unsure about how all of that is incorporated
> into the holding and what this means going forward?

I think this post from the RegBlog should have all the info you need about the case:

http://www.regblog.org/2014/06/25-hamilton-scotus-compromise-greenhouse-gas.html

------------------------

Am I allowed to construct a chart and put it in a memo?

Yes.

----------------------_

First note - there is a typo: The Friday at the end of the exam period is the 11th, not the 12th.

 

 

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