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.
We are all going to die – soon
From Season 3, Episode 3 of Newsroom:
It is just a liberal plot:
It might be getting warmer, but who knows why?
A thoughtful skeptic:
Evaluating science in the media
Sea level rise is the major global warming threat to coastal Louisiana and New Orleans. We are going to have a representative from NOAA in class to talk about the effects of relative sea level rise on coastal Louisiana.
Please review these articles before class:
As we will discuss later in the course, even these articles overstate the possibility of coastal restoration. For example, the best evidence is that river diversions will not build land at all:
We will discuss this in class.
We are going to start our discussion of climate change by looking at the cultural cognition problem – what shapes people’s beliefs about scientific issues? Do the people you disagree with just not know the facts?
Read this article through page 37. This research explores the critical distinction between what a person knows and what a person believes, or put another way, what a person knows as opposed to who the person is. This has important implications for communicating information about controversial subjects such as climate change. It is also fundamental to trial practice: you have to persuade jurors to believe your story, not just know your story.
The article is well written, but can be heavy going. Pay attention to the graphs. Look carefully at the section that discusses why telling people that 97% of scientists believe something is not a good way to get them to change their mind.
There is a section on climate change beliefs in south Florida starting on page 33. I disagree with the author here on using this as an example of a community that has accepted climate change despite their political divisions. My question: are you really accepting climate change/sea level rise if the actions that you take in your plan cannot work if sea level rises? This has direct application to Louisiana.
This is the core source for climate information. We are going to look at its basics so we understand where the climate science we will discuss comes from.
What is the IPCC? – read
History of the IPCC – read
Climate Change 2014 Synthesis Report – Fifth Assessment Report – Read pp. 35-56
The end of climate regs: Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs
In America’s Heartland, Discussing Climate Change Without Saying ‘Climate Change’ https://nyti.ms/2jHpu3Y
Carry over readings from last class. Read pp. 56-73.
Climate Change 2014 Synthesis Report – Enhanced Graphics for Discussion (from last class)
“At the Department of Energy, it would roll back funding for nuclear physics and advanced scientific computing research to 2008 levels, eliminate the Office of Electricity, eliminate the Office of Energy Efficiency and Renewable Energy and scrap the Office of Fossil Energy, which focuses on technologies to reduce carbon dioxide emissions.”
Same reading as last class. We are going to discuss the risks from climate change as outlined in the IPCC report.
Cultural cognition from the point of view of a conservative radio talk show host with second thoughts.
The methane flaring and leak rule is a big climate issue.
Read this short piece and look at the risk graphic from the World Economic Forum. The full report: The Global Risks Report 2017 12th Edition. This is not assigned but it is a good resource on global risks, including political risks.
We are looking at this because it is important to the climate change skeptic narrative. It is real, and it shows the importance of other factors than CO2 in climate.
The Little Ice Age – Overview and Video – read and watch video
We are now starting our deep look at sea level rise and coasts, the most predictable effect of global warming.
While this is a technical publication, it is mostly aimed at policy makers, not scientists. Read it to get a sense of the carbon sequestration role of wetlands and marine systems and the implications of their failure. Skip the technical parts you do not understand.
A Crack in an Antarctic Ice Shelf Grew 17 Miles in the Last Two Months https://nyti.ms/2jXq2li
See the Distinguishing Legislative Rules from Interpretative Rules article I have emailed to you. Read to page 561.
Notice and Comment Rulemaking – 553
Now that you have the jargon on rulemaking to appreciate the news, we are going to back the sea level rise in Louisiana to set the stage for our discussion of mitigation (reducing GHGs) and adaptation (figuring out how to live with climate change). The Louisiana exercise is important because we are in LA and because it is a good way to get a sense of the changes that are in store for coastal areas around the world.
Read the Executive Summary and Chapter 4. I want you to get enough background on the that you can compare to reality when I go through the geology and hydrology of the Mississippi Delta.
As you read this, look carefully at the maps and try to sort out the land building projects – the public face of the plan – from the levee projects. One of our questions will be whether the land building is just a pork barrel spending project and the only protection in the plan is through levees.
This is the largest coal plant in the West. Another victim of cheap gas.
Thursday at Lod Cook
King Tides Show Us How Climate Change Will Threaten Coastal Cities – Great short video
Read Chapter 5 in the Master Plan
Another look at subsidence – Fort Proctor
An alternative to the Master Plan – very interesting.
Comic relief – Climate Name Game
Subject to revision
This case will take on special significance if the EPA loses the ability to regulate GHGs.
Read through  – the majority opinion. We will discuss how this case applies AEPC. We will read the concurrence next class.
Background on Alaskan Villages
Take a look at this before class. I will use it to talk about private climate litigation before we talk about AEPC and Kivalina. I am linking to the original site because this is continually updated.
This is an important analysis of the paradoxical effect cheaping renewables have on the energy market. We will discuss this in class. Let me know if you have trouble with access to the article.
Look at the concurrence in Kivalina.
Juliana v. United States, No. 6:15-CV-01517-TC, 2016 WL 6661146 (D. Or. Nov. 10, 2016) – Children have standing under public trust doctrine to bring climate action. – RECODED WITH HARD NUMBERS – HTML version with paragraph numbers for class discussion.
This is our major case for the day. This is the children’s crusade on climate change. Read it carefully. We are going to look hard at standing and the public trust doctrine, and we will also work through the political question defense that the feds brought. This is a good review of public trust. I have prepared a study guide to help navigate the case: Juliana – Oregon Children – Dist Court Order – Study Guide
Appeals court hands oil companies victory in coastal lawsuit: Bd Cmsnr SE LA Flood Protc, et al v. Tennessee Gas (2017)
We are going to begin our analysis of the underpinning for Clean Power Plant Rule. Read through page 10 and skim the rest of this document. We are going to go though It is technical support for rule, which is below. This is the endangerment finding that Pruitt will have to deal with in killing the Clean Power Plant Rule. We will start on the rule next class.
“In one case, Mills said, climate change and global warming are unfairly treated as foregone conclusions”
Work through this. Find the legal authority and what needs to be show to trigger it, then look at how the technical document we discussed last class is used in the document, and finally parse the actual reg.
I added bookmarks and highlights to facilitate our discussion.
Clean Power Plan Final Rule – August 2015
Just quickly skim these to get a feel for their length and complexity
The EPA put together a set of short fact sheets explaining the Clean Power Plan. We are going to read these and discuss them in class.
Read from 2. Environmental Benefits, p.39 to 4. Anticompetitive Effects, p45.
Brief of the Institute for Policy Integrity at New York University School of Law as Amicus Curiae in Support of Respondents, ZERO ZONE, INC., et al., Petitioners, v. UNITED STATES DEPARTMENT OF ENERGY, et al., Respondents., No. 14-2147, 2016 WL 4177217, at *1 (7th Cir. Aug. 8, 2016)
A little fun following the discussion last class: Martin Weitzman’s Dismal Theorem: Do “Fat Tails” Destroy Cost-Benefit Analysis?
(These are all pretty short.)
This study looks at where carbon tax / cap and trade revenues are spent.
This was the climate bill that passed the house but did not pass the Senate before the Republicans captured the House.
Germany has seen an amazing drop in automobile per mile over the past 30 years. It is now about half the US rate, dentists and Porsches, notwithstanding.
Trump Lays Plans to Reverse Obama’s Climate Change Legacy https://nyti.ms/2nyNzz6
We will have a guest speaker
Pruitt criticised the Paris climate agreement, which Trump has reportedly said he will “cancel” and which Pruitt said was too lenient in its provisions for China and India, which, like the US, are among the world’s leading producers of carbon dioxide.
“China and India got away, the largest producers of CO2 internationally, got away scot-free,” he said. “They didn’t have to take steps until 2030.
“So we’ve penalized ourselves through lost jobs while China and India didn’t take steps to address the issue internationally.”
Pruitt said the Trump administration was “making sure we operate within the framework of the Clean Air Act”. But, he added: “Paris was just a bad deal, in my estimation.”
This is a chart of the prices of carbon and the amount of emissions covered throughout the world.
We are going to read and analyze the Paris Climate agreement. This may take more than one class, but use the weekend to get the reading done. This the key global climate change agreement. Think about whether it is sufficient, what happens if the US pulls out, and where do we go from here?
China Poised to Take Lead on Climate After Trump’s Move to Undo Policies https://nyti.ms/2nzwELP
Donald Trump Could Put Climate Change on Course for ‘Danger Zone’ https://nyti.ms/2emlyH9
First priority – Read this
Read why Exxon wants Trump to stay in the Paris Agreement
Review Obama’s executive order on sustainability.
Continue our discussion of the Paris Agreement
We are going to do some serious case reading. Prior to the passage of the Federal Tort Claims Act in 1946, you could only sue the federal government for takings and for contract claims. You could not sue for torts. The first two cases deal with the construction of the then new FTCA. Be sure to read the dissent as well in Dalehite – many contemporary scholars still think the dissent was right. Allen homes in on what it means to do something terrible on purpose and what that means for liability.
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.
Does immunity under the Flood Control Act of 1928 survive the FTCA?
The FCA is critical to understanding the potential liability of the federal government for flood control projects.
Watch this outside of class – pay special attention to the levee comments at about 12:30 and the ending comments at 27.
LBJ and Russel Long right after Hurricane Betsy: https://millercenter.org/the-presidency/educational-resources/lbj-and-senator-russell-long-on-hurricane-betsy
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?
What did the court decide on remand and how might this be relevant to the Hurricane Katrina Cases?
The key Supreme Court case on Flood Control Act immunity for dual use projects. Think about how this modifies Graci.
Albert E Cowdrey, Land’s End, a History of the New Orleans District US Army Corps of Engineers, and Its Lifelong Battle With the Lower Mississippi and Other Rivers Wending Their Way To the Sea. US Army Corps of Engineers. (1977) (large file)
These both contain historical information on MRGO and where it fit into the larger navigation system.
Showing that the MRGO did not increase flooding with Hurricane Betsy
Should Katrina have been a surprise? – Washing Away – Definitely take a look at these stories.
The Mythical Hurricane Response Plan – If this had be followed, there would have been a lot fewer deaths.
The Hurricane Pam Exercise, 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.
Read  –  This notice problem cuts across all the cases.
Read p. 26-35. This is the analysis of the application of the FCA that will carry through the case. In this opinion, it is applied to flood walls on the 17th Street Canal.
Use these slides as you skim the opinion to find the core issues: In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644
The very rare situation where the 3 judge panel overrules itself, rather than the case going on to en banc review. Read  to the end. Before getting to the DFE, the court slightly modified the lower court’s interpretation of Sec. 702, but still focuses only on the MRGO and not the waters or the levees.
This is going to be basic insurance law day. Important practice info for a community that has just been flooded. Lots of reading, but well worth it. You can scan for the core law, the details do not matter.
Legal standards for construction of insurance policies. 
This looks at the Louisiana Valued Policy Law and how it affects claims when there is a total loss. 
A little good news – original article: Ruppel, C.D. & Kessler, J.D., 2017. The interaction of climate change and methane hydrates. Reviews of Geophysics, 55(1), pp.126–168. Available at: http:https://dx.doi.org/10.1002/2016RG000534.
National Flood Insurance Program – Dwelling Form – Standard Flood Insurance Policy – F-122 / October 2015 – 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. (2011 is the current version) (Answers to Questions about the National Flood Insurance Program – edited for discussion)
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.
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
We will have a guest speaker on Monday, a senior disaster response manager who will talk about the issues in disaster response and the career opportunities in the field. He is an alum of the law school and deeply understands the problems that LA faces.
We will carry over the assigned material to Wednesday.
Exam opens – Monday, May 1 at 8:30 am.
Exam closes – Monday, May 15 at 2:00 pm.
Exam document identified only by exam number will be emailed to Kristi Parnell <Kristi.Parnell@law.lsu.edu> Time allotted – no limit (exam will be word limited) The exam software will not be used.
Exam is open book – any materials we used in class, materials linked to on the class blog, and your own notes may be used. General Internet research is prohibited. (This is not a research paper.) The exam will be provided through Moodle.
This is a calculation of the earth’s temperature without any CO2 in the atmosphere, which would be about 0F. (You can also use this to calculate how much CO2 you would need to add to the Martian atmosphere as you are terraforming it replace the earth.)
Counterpoint to the methane story in last Wednesday’s news (Could Subsea Methane Hydrates Be a Warming “Tipping Point”?)
How a Warming Planet Drives Human Migration https://nyti.ms/2oUj07f
Is It O.K. to Tinker With the Environment to Fight Climate Change? https://nyti.ms/2oQZJ6M
Finish materials from last Wednesday.
Read sections 4 and 10.
National Security and Climate Change (read these for Monday, but we will not finish them until Wednesday)
How are the rights of refugees under the International Refugee Convention different from those of climate migrants?
This explores how global climate and extreme weather events drove the Syrian civil war.
Read the Executive Summary through page 9 and then scan the different case studies.
We are not reading this, but I am providing it because it is the major Supreme Court case after American Electric Power Company, Inc. v. Connecticut, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011).
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