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First week reading assignments:
Skim to become familiar with the basic provision: Integrated Ecosystem Restoration and Hurricane Protection in Coastal Louisiana – 2015 Draft.
LA elevations - https://biotech.law.lsu.edu/climate/docs/CZB_Report_20August2010.pdf page 46, fig 7
Speaker - Tim Osborne - slides
It is time to start digging into the readings. NEPA and the EIS process is going to be critical for our first project, which we will discuss in class. I wanted to give you a heads up so you can start reading. This is the classic practice assignment - the senior partner wants you to be the firm's NEPA expert at a client meeting in a few days. It is your job to get up to speed. But being a benign senior partner, I have put together some materials to get you started:
http://sites.law.lsu.edu/coast/2014/01/nepa-resources/
Snow day.
The firm needs a quick appraisal of the EIS for the Morganza to the Gulf Project, focusing on how climate change, subsidence, and relative sea level rise are addressed. Remember, we are especially interested in the problem problem of wetlands being drowned by RSL rise and how is mitigation for this is handled. The basic documents are here:
http://sites.law.lsu.edu/coast/2014/01/morganza-to-the-gulf-of-mexico-eis-resources/
You should also identify any additional documents that should be reviewed so that we can add them to our collection.
The memo should be 1000 words. It is due Monday, 3 Feb by 1 PM so that I can read and mark them before class on Tuesday.Be prepared to discuss your findings and the EIS during class. Remember, the purpose of a memo is to convey information about the question, not to review the law. You need the law to know what to look for. Cite to relevant page numbers in the reports.
Free enviromental communications program Friday - longer
Makeup class, 9-11 AM, usual classroom, unless directed otherwise.
Readings:
Due to the low turn (3) for our critical speaker, I will attempt to recreate the presentation and discussion, with the help of the students who attended.
Great clip: http://www.fox8live.com/story/24720560/powerful-voice-questions-louisianas-plans-for-rebuilding-its-coast
Coastal Adaptation and Global Warming, Fall 2010 | Louisiana Coastal Geology: Shaping the Future of the Louisiana Coast - Prof. Roy Dokka
http://ccweb.law.lsu.edu/Panopto/Pages/Viewer/Default.aspx?id=28071ff4-f660-4b3d-9ed7-a2af8461d27c - slides from the talk.
You now have additional information about wetlands and subsidence. I would like for you to some research on the Mid-Barataria Sediment Diversion and proposed EIS for the diversion. The Firm is considering whether to contest the EIS. Find out what you can about the diversion and and analyze what NEPA issues should be analyzed to do the EIS. You have 1500 words, and be prepared to discuss the diversion and potential legal strategies at the next class. The memo is due Monday, 24 Feb by 7PM so that I can review them before class.
Chapter 5 188-197.
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 98 S. Ct. 1197, 435 U.S. 519 (1978) The nuclear power industry was killed through a combination of administrative law process by anti-nuclear power forces and two accidents. It is now reviving, but with an open question of how the public will react to the Japanese reactor meltdowns.
Slides (will be revised for next class)
NRC fast track program for new reactors - the operating and construction permit process has now been consolidated, to reduce the opportunities for administrative delay.
Can nuclear power compete in the open market?
Senate thinks about nuclear waste disposalScary developments in reactor design
Speaker.
As we discussed in class, the next rewrite is due Monday evening, say by 6 PM. You have up to 2500 words this time, and I have sent you new materials to think about. We have a speaker during class, but will discuss the assignment after that..
Resources from our speak, Kelly Haggar, JD.
1. Start with my attached mini-history on the true history and the actual pecking order.
2. Then read the Army’s regs trying to implement the case law and Congressional statutes; 33 CFR 329.1 thru .16; the 9 can use their “free” WestLaw or the LII from Cornell’s Law School at:
http://www.law.cornell.edu/cfr/text/33/part-329
3. Then go the New Orleans web page of:
http://www.mvn.usace.army.mil/Missions/Regulatory/JurisdictionWetlands.aspx
where they will see this at the top of that page:
OVERVIEW OF JURISDICTIONAL DETERMINATION (JD)
The geographic jurisdiction of the Rivers and Harbors Act of 1899 includes all navigable waters of the United States which are defined (33 CFR Part 329) as, "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce." This jurisdiction extends seaward to include all ocean waters within a zone three nautical miles from the coast line (the "territorial seas"). Limited authorities extend across the outer continental shelf for artificial islands, installations and other devices (see 43 U.S.C. 333 (e)). Activities requiring Section 10 permits include structures (e.g., piers, wharfs, breakwaters, bulkheads, jetties, weirs, transmission lines) and work such as dredging or disposal of dredged material, or excavation, filling, or other modifications to the navigable waters of the United States.
The Clean Water Act uses the term "navigable waters" which is defined (Section 502(7)) as "waters of the United States, including the territorial seas. " Thus, Section 404 jurisdiction is defined as encompassing Section 10 waters plus their tributaries and adjacent wetlands and isolated waters where the use, degradation or destruction of such waters could affect interstate or foreign commerce.
4. Two links on that New Orleans web page are:
http://www.mvn.usace.army.mil/Portals/56/docs/regulatory/NOD_Navigable_Water_List.pdf
http://www.mvd.usace.army.mil/Portals/52/docs/regulatory/11_MVD_navigable_waters.pdf (embedded within the above PDF)
You have now had a basic introduction to the 404 permitting process, and links to some 404 resources. You need to research the standards for 404 which need to be addressed in the EIS. Hint - It might be useful to look at the EIS reports that have been for previous diversions. Remember that there are lots of materials on my blog as well as through the WWW and traditional legal materials.
For next class, I want you to make a list of all the issues that are addressing in your memo, including any new ones you find in your research of the 404 process. Send me these lists - name your file Assignment 4 - by 5PM Monday the 17th. I will pull them together to share, and be prepared to discuss the issues you raise in class. Just to be clear, I only want the list, not a rewrite of your paper. You should, however, be working on the rewrite including the new 404 material. There is no word limit going forward.
Updated posts:
http://sites.law.lsu.edu/coast/2010/10/can-river-diversions-restore-marshland/
Posts with additional information:
http://sites.law.lsu.edu/coast/2013/02/river-diversions-harry-h-roberts/
http://sites.law.lsu.edu/coast/2014/03/caernarvon-freshwater-diversion/
Chris McLindon on the delta cycle. Recording if you were not able to attend:
http://lsulaw.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=e0593482-b65b-4334-8057-1f3c08edaab0
Slides are here at the moment:
https://biotech.law.lsu.edu/working/faults.pptx
Pending speaker. Check back for more information. No assignment.
Drafts due 13 April by midnight so I can read through them before class. I will provide individual written comments by email and will be available for discussion in person or by email after classes are over. Final drafts will be due May 15th.
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