Day 3 – 17 Jan
News
Telling a different story – how ranchers who deny climate change come to love wind farms.
2021 U.S. Billion-dollar Weather and Climate Disasters in Historical Context – Hazard and Socioeconomic Risk Mapping (NOAA) – Louisiana (p. 9)
The New Yorker: Three Climate Reports: The Good, the Bad, and the Ugly
The U.S. National Blueprint For Transportation Decarbonization (White House 2022)
Preliminary US Greenhouse Gas Emissions Estimates for 2022 (Rhodium Group 2023)
GLOBAL CLIMATE HIGHLIGHTS – Globe in 2022 (European Commission 2023)
Assignment
Review these short discussions and videos of basic concepts about the earth’s atmosphere for the start of my presentation about basic climate science.
What is the temperature on the Moon?
What if the earth were like the moon, without an atmosphere?
Why is there an atmosphere around our earth and not around other planets?
How did the earth’s atmosphere form?
Why water is the magic of climate and life. Things to think about: Why does ice float, rather than sink? What would the climate be like if ice didn’t float?
What are the main greenhouse gases?
Why water really controls the temperature of the planet, but why other GHGs set the thermostat.
How Ice Ages Happen: The Milankovitch Cycles
Why the climate changes without human intervention
Where are we in the Milankovitch Cycles?
Would the planet be warming or cooling now, if there were no people?
One more variable
This is a direct effect of CO2, separate from its effect on heat retention in the atmosphere.
Day 4 – 19 Jan
News
The Guardian: Atmospheric dust may have hidden true extent of global heating.
Skipped Showers, Paper Plates: An Arizona Suburb’s Water Is Cut Off
Temperatures on Greenland haven’t been this warm in at least 1,000 years, scientists report
Assignment
I will continue my presentation on climate change science. Read through these documents as an overview of the IPCC. These are written for policymakers and lawyers, not scientists.
AR6 Climate Change 2021: The Physical Science Basis – Summary for Policy Makers
Resources
Day 5 – 24 January
News
Ventusky Weather Site – graphic display of global wind and weather
When scientists tagged a curious seal, he led them to signs of a potential climate disaster
NASA’s Double Asteroid Redirection Test Is a Smashing Success
Climate change fiction
If you have read any of these or watched the movies, please speak up in class! Email me if you have others to add to the list.
The Ministery for the Future – Rolling Stone interview with the author – Bill Gates review
Termination Shock – Author interview – Slate review
The Deluge (just published) – Author interview – Times review
Climate change movies and documentaries
Assignment
Last class, we looked at the IPCC projections of how much the climate might change with different emissions scenarios. In this class we are going to look at the potential impacts of those changes. This is a 34-page summary for policymakers (non-scientists and lawyers) of the major report on climate as of 2022. Read through it to get. This is a link to the full report. Download it and browse through it to get a sense of the overall scope of the work in the reports.
Resources
The Cheap and Easy Climate Fix That Can Cool the Planet Fast
Day 6 – 24 Jan
Moodle Attendance
There are three options to choose for attendance status: present, corrected, and absent. Moodle auto-populated the point allocation for each, giving “present” 2 points, “corrected” 1 point, and “absent” 0 points.
As the “corrected” status is merely used for administrative purposes, and functionally serves the same purpose as “present,” the point allocations for both “present” and “corrected” have been set to 1.
News
Bill Gates backs new startup aiming to reduce emissions from cow burps
E&C Republicans elevate climate in subcommittee shakeup
For use in class – it is firewalled so you probably cannot read it without a subscription.
Assignment
We will finish our discussion of the IPCC report from the last class. Be sure you have read the report. I have updated the slides: Day 6 – revised
We conclude our discussion of the potential impacts of climate change. The next section is a look at mitigation – what needs to change to limit GHG emissions. We may not get to this material until next class.
This is the official strategy of the Biden administration. Read through Chapter 4, which ends on page 34. It’s written for laymen and is fast reading. We will discuss this in class. Look at the graphs and try to understand what the graph is showing. Try to get through by Tuesday.
Watch this video. It is a panel of some of the leading experts on the legal pathways to reducing GHGs. We will also discuss this in class.
Slides – Pathways to deep decarbonization in the United States
Day 7 – 31 Jan
News
NRC Certifies First U.S. Small Modular Reactor Design
What 5,000-year-old skeletons tell us about living with climate change, discussing Robbins Schug, Gwen, et al. “Climate change, human health, and resilience in the Holocene.” Proceedings of the National Academy of Sciences 120.4 (2023): e2209472120.
Assignment
Part I
We will start with a discussion of projections gone wrong and their effects on the climate change debate. One of the roots of climate change skepticism is the backlash from projections made in the late 1960s and early 1970s that overpopulation would lead to widespread famine and a shortage of natural resources by the 1990s. The primary document was The Population Bomb. Read the Forward of the Population Bomb for class. The second was The Limits to Growth. This is a more technical report from a group of MIT scientists. It did not make the same specific predictions as The Population Bomb, but it did find that overconsumption, combined with increasing population, was an acute threat that would eventually lead to critical resource shortages. Read the Introduction to The Limits to Growth and The Club of Rome, Skeptics and Myths We Believe, a short discussion of how the findings of the report were misrepresented.
We will then talk about the politics of population – the topic of the Population Bomb – and why there is a push from some sectors of both the left and the right to increase the population of the US. Start with Are Malthus’s Predicted 1798 Food Shortages Coming True? Then read this interview: The case for more — many more — Americans and this article Why U.S. Population Growth Is Collapsing. Think about the economic impact of a lower and older population in the US, which depends on a large base of younger workers to pay for Medicare and Social Security. Also think about the politics of population control in the United States. But what about climate? Can we expand the population without making the climate problem much worse?
Part II
When we finish Part I, we are going to start the second section of the course, in which we will look at the history of EPA GHG regulation. This will extend over both classes this week. What we do not cover on Tuesday will be extended until Thursday.
Before we start this section, we need to do some background work. Administrative law is fundamental to modern law practice. Unfortunately, most law school curriculums have their roots in the 1800s and thus do not include administrative law as a first-year required course. Most of the regulatory cases we are going to read stem from fights over the rulemaking process. If you have had administrative law and remember rulemaking, you are good to go. If you have not had administrative law, or you want to review what you learned about rulemaking, you need to watch this video or play the narrated slide show:
Introduction to Rulemaking for Climate Law Students – Video – Narrated PowerPoint
The starting point for EPA GHG regulation is Massachusetts v. E.P.A. This case was a fight over a petition for rulemaking under APA § 553 (e):
Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
This is the text (not a scan of the original document) of that petition:
Scan through this to see the format and the basic arguments for why climate change is a threat. It is a simple document that begins with the requested regulation, then the parties who are requesting the regulation, then the legal justifications for the request. Read carefully from III. THE ADMINISTRATOR HAS A MANDATORY DUTY TO REGULATE GREENHOUSE GASES UNDER THE CLEAN AIR ACT, p.30 to the end. This is the actual request for rulemaking.
The EPA answered the petition saying that it did not have the legal authority to regulate GHGs and that even if it did have the authority, it did not think it would be good policy to regulate them. The petitioners then challenged the EPA ruling in Cir. Court, arguing that the agency did have the authority to regulate GHGs. The Circuit Court upheld the EPA action, but did not address the standing issue.
Read the highlighted text in the Circuit Court case on pp. 9-10.
Massachusetts v. E.P.A., 415 F.3d 50 (D.C. Cir. 2005)
The court reasoned that if it found that the EPA action was proper, it would not have to resolve the standing issue. The Court then found that the EPA acted properly and thus dismissed the case without reaching standing.
Petitioners then filed a writ of certiorari seeking review by the Supreme Court.
EPA Response Brief to Writ of Certiorari in Mass v. EPA (edited for standing argument)
Read this excerpt from the brief. This sets up the issues for the Supreme Court review of standing. We are now going to listen to the arguments before the Supreme Court on standing:
Oral argument in Mass v. EPA (Oyez)
(The link to the recording of the argument is under the case name on the left sidebar.) The petitioner’s standing argument starts at 0 (beginning of the recording to 17:55. The EPA response starts at 27:00 and runs to 45:20. If you have not used Oyez before, it links the written transcript of the oral argument to the audio. It also identifies the judge speaking to make it easier to follow the argument. The argument is excellent. When you read the Supreme Court opinion you will see how the questions from the argument end up in the majority and dissenting opinions. There is a bitter split on the court over the standing issue. This issue is likely to be reexamined in future climate cases because the majority of the court has changed since this decision. All of the conservative judges except Kennedy opposed standing in the opinion. Kennedy is gone and the new judges are likely to join those who opposed standing.
Now read Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – standing
Slides – Mass v. EPA – standing – revised
Day 8 – 2 Feb
News
I use it because it’s better’: why chefs are embracing the electric stove
Assignment
Slides – Mass v. EPA – standing – revised – again
Carry over from last class.
Once the court got past the standing issue, it looked at whether the EPA had the authority to regulate GHGs. This was analyzed under the Chevron test, which will see in later cases.
Read Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – Chevron
Slides – Mass. v. EPA – Chevron – revised
Day 9 – 7 Feb
News
Salon: Climate denial campaign goes retro with new textbook.
Assignment
Finish material from last class on Mass. v. EPA.
Slides – Mass. v. EPA – Chevron – revised
The next critical case on the EPA power to regulate GHGs deals is Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302 (2014).
If you have not taken environmental law, you should review this short discussion of the regulatory standards in the CAA:
EPA information on the PSD program and BACT.
Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302 (2014) – annotated – UARG – PDF
I have deeply annotated the case to allow those of you without environmental law to follow the legal analysis.
UARG v. EPA – Dissent (annotated)
I prepared this detailed analysis of the dissent in light of the West Virginia v. EPA decision. In retrospect, this forecasted how the law would shift as the composition of the court changed.
Day 10 – Feb 9
News
A national scandal’: how US climate funding could make water pollution worse
‘Monster profits’ for energy giants reveal a self-destructive fossil fuel resurgence
How evangelicals moved from supporting environmental stewardship to climate skepticism
Assignment
Finish the material from last class.
UARG Study Guide Slides – revised and simplified
West Virginia v. EPA (Edited – PDF) – Word
Slides – West Virginia v. EPA – revised
Day 11 – Feb 14
News
A federal judge canceled a major oil and gas lease sale over climate change.
Last spring, but it shows the power of NEPA
Assignment
Finish West Virginia v. EPA.
Other than mobile sources, the Court has killed the EPA’s authority to directly regulate GHGs. We are now going to turn to statutes that can be used to challenge specific projects which exacerbate climate change or which will pose risks to the community because they have not properly accounted for the effects of climate change. The most important of these is the National Environmental Protect Act, (NEPA).
NEPA is the first of the modern environmental laws. It is not a direct regulatory law. Instead, NEPA requires covered projects to prepare a detailed analysis of the environmental impacts of a proposed project. The objective of NEPA is to assure that the public and government officials make decisions based on complete and accurate information in the form of an Environmental Impact Statement (EIS). NEPA has a strong citizen lawsuit provision that allows interested parties who meet the standing requirements to challenge the EIS if they can show that the EIS is inaccurate or incomplete. The court can order that the EIS be amended, including doing new studies of environmental impacts if necessary. Once the EIS meets the requirements set in the NEPA regulations and case precedent, there is no right to challenge the decision to build the project. NEPA is the major tool that environmental groups use to try to stop environmentally dangerous projects. While the statute focuses on public information, the delay inherent in court challenges and EIS revisions can delay projects for years. This gives the groups opposing the project time to build political opposition to the project.
We are going to start our NEPA section with a bit of history. In 1962, Rachael Carson, a writer and naturalist, published Silent Spring. The book is credited with starting the modern environmental movement. (By this I mean the movement that focuses on the health effects of pollutants on people, as opposed to the much older movement that focused on preserving natural spaces and the creation of national parks.) This leads to the passage of NEPA in 1970. Watch the short video linked below on Rachael Carson and the impact of Silent Spring.
Then review:
The National Environmental Policy Act of 1969, as amended
NEPA – Parsing the Statute – Video – Narrated PowerPoints (they are the same, just different formats)
This is a brief introduction to the NEPA statute that I recorded so we do not have to spend class time reviewing the basic statute. If you have taken environmental law, you will already be familiar with NEPA.
The courts have begun to require an analysis of the impact of projects on climate change to be included in the EIS. This gives environmental groups a way to attack environmentally unsound projects and assure that the full range of risks to the climate is included in the EIS. At the same time, this will delay the project, giving time to find other ways to stop the project. Interestingly, some of the same issues came up in the earliest NEPA case, which involved the licensing of a nuclear power plant. The plaintiffs wanted an analysis of substituting energy conservation as an alternative to the construction of the plant included in the EIS. We are going to look at this old case and a modern case directly incorporating climate considerations into the NEPA analysis:
Slides – NEPA Cases – updated
Resources
Day 12 – 16 Feb
News
US coastal communities underestimate the danger posed by rising seas
What Would Earth’s Temperature Be Like Without an Atmosphere?
Assignments
Before we look at the Endangered Species Act, we are going to take a deeper look at how NEPA litigation works. The statute is only the starting point. You have to address the specific facts of the EIS that you are attacking. The first problem is getting standing. While NEPA is intended to provide information for all of the public, the courts still require plaintiffs to show Lujan standing, as we reviewed in Mass v. EPA. In the Haaland case, plaintiffs sued the Department of Interior, headed by Secretary Haaland, for not conducting a proper NEPA review of the offshore lease process in the Gulf of Mexico. We are going to start with the complaint. Read it to find the standing facts asserted by the plaintiffs, and find how they were handled by the court in the Haaland opinion. (Hint – most of the discussion is in the footnotes.) We will return to the complaint and the opinion to see how the plaintiffs present their factual allegations and how the court handles them.
Friends of the Earth v. Haaland – Complaint for Declaratory and Injunctive Relief – Annotated complaint
Friends of the Earth v. Haaland – Opinion (27 Jan 2022) – annotated copy
For contrast, we are going to look at a 5th Cir case on nearly the same standing facts and see what it looks like when a court wants to deny standing to plaintiffs.
Review the highlighted portions – Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102, 2019 WL 4126355 (5th Cir. Aug. 30, 2019
This is the court’s order dismissing the case based on not finding that the plaintiffs had standing. I have highlighted the key sections so you can scroll through and review the court analysis. The key is that the court rejects claims that point source pollution from rigs affects the entire Gulf. This discussion starts on page 7. The failure to do a proper NEPA review is a procedural rights claim, subject to the relaxed standards for injury in procedural rights claims. Despite this, the plaintiffs fail because the nature of rigs in the Gulf makes it difficult for individuals to show a nexus between a discharge by a specific rig and their injuries proximate to that rig. This allows EPA to escape citizen suit review even if it issues a bad permit. The lesson is to not file an environmental case in the 5th circuit if you can avoid it.
After reviewing standing, read through the Haaland opinion using the annotations to see how the court handles the detailed requests for deeper analysis of the climate change issues posed by the leases.
Day 13 – 23 Feb
News
The Guardian: World risks descending into a climate ‘doom loop’, warn thinktanks.
Assignment
NEPA
If you were absent from class on Thursday, Feb 16, be sure to watch the class recording. We went through what needs to be in a complaint for a NEPA case. We will finish our discussion of NEPA.
Environmental Quality Weighted Oil and Gas Production – Review this WWW page. You might want to look at the report as well. This is the theory that was discussed in the Friends of the Earth v. Haaland case. It argues that the environment is better protected by producing as much US oil and gas as possible because US production is cleaner than production in the rest of the world. What are the mistaken presumptions in the theory?
2017-2022 Gulf Of Mexico Multisale Environmental Impact Statement – This links to the EIS that is at issue in Friends of the Earth v. Haaland. Take a quick look to see the scale of a major EIS.
Food for thought – How would you argue to the SC under the MQD that Congress did not intend NEPA to include climate change as part of the EIS?
Endangered Species Act
Why is biodiversity so important? – Brief video explaining biodiversity.
Endangered Species Act 101 – Short video introducing the ESA.
J.B. Ruhl, “Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future,” 39 Environmental Law Reporter 10735 (August 2009) – Professor Ruhl reviews the ESA. Read this for his analysis of the problems of applying it to habitats threatened by climate change.
Everyone’s favorite endangered species
In re Polar Bear Endangered Species Act listing and Section 4(d) Rule Litigation, 709 F.3d 1 (D.C. Cir. 2013) – This is the listing case for polar bears. Read this for the factual justifications for listing the polar bear, do not worry about all the procedural fights. Think about what this listing really means. Is it a meaningful path to protecting polar bears? How might that work?
Day 14 – Feb 28
News
Maryland Law and Policy Fellowship – great job opportunity for 3Ls interested in the environment and climate change.
This Small Lake in Africa Once Killed 1,700 People Overnight, And We Still Don’t Know Why – not new, but relevant to the controversy over CO2 pipeline accidents.
Biden urged not to approve oil terminals that could create ‘carbon bombs’
Feds slash Gulf’s first offshore wind farm areas
Background on LA wind
Lawmaker wants wind farms in Louisiana waters, but his bill may send them elsewhere
United States – Annual Average Offshore Wind Speed at 90 m
Power increases by the cube of wind speed.
9 MPH produces about 2x power as 7 MPH
Alabama-Florida-Georgia Offshore Wind Speed at 100 Meters
Assignment
Permitting Green Infrastructure
Inflation Reduction Act Advances Stalled Offshore Oil and Gas Lease Sales – Postscript to the Haaland NEPA case – Congress overruled Haaland in the IRA.
How does permitting for clean energy infrastructure work? (Environmental Review and Authorization Inventory – full inventory) – This is a good review of the permitting delays and some reforms. Read it carefully and explore the links.
Michael B. Gerrard, A Time for Triage, 39(6) ENVTL. F. 38 (2022). – Read this and think about the potential tradeoffs necessary to rapidly build out green infrastructure. What are the political tradeoffs in amending NEPA, the ESA, etc.?
For an example of the conflicts between different green strategies look at this site and think about biodiversity: Trillion Trees
Also: Thunberg, indigenous protesters block Norway energy ministry over wind farms
International Agreements
Read this short piece as an introduction to my lecture, Introduction to Treaties and International Agreements.
Slides – Introduction to Treaties and International Agreements
Day 15 – March 2
News
How much does mass tree planting affect climate change?
Assignment
Carryover the materials from last class.
Slides – Introduction to Treaties and International Agreements – subject to revision
Montreal Protocol
We will next look at the Montreal Protocol, which is the most successful environmental law treaty and the only climate change treaty that the US has ratified. (The 2016 Kigali Amendment made it explicitly a climate change treaty.) The Montreal Protocol was negotiated to protect the ozone layer in the upper atmosphere from being destroyed by the halogenated hydrocarbon compounds used as refrigerants. We are going to start with a short video I recorded on the basic science of ozone. As I mention in the video, there will not be any physical chemistry on the exam.
Ozone Basics – Panopto | Ozone Basics – YouTube | Slides – CFCs and the Ozone Hole
When you have completed the ozone basic video, watch this 5-minute overview of the lead-up to and development of the Montreal Protocol.
The Hole – A film on the Montreal Protocol, narrated by Sir David Attenborough
Then read through these two summaries of the protocol itself. We will review the protocol in class.
UN – About the Montreal Protocol
Summary – Montreal Protocol on Substances that Deplete the Ozone Layer
Slides – Montreal Protocol Review – subject to revision
(We will continue with the Montreal Protocol next class)
Day 16 – March 7
News
UN delegates reach historic agreement on protecting marine biodiversity in international waters (Draft of the agreement)
U.S. Congress votes to block ESG investing, Biden veto expected
Summary of the Congressional Review Act – the legal mechanism for killing the rule
The resolution and description of the rule – this is about fiduciary duties for pension plans.
Assignment
This chart are the relative emissions of GHGs today. Emissions from developing countries, plus China and India, are almost 2/3 of global emissions. They are also the countries whose emissions are projected to rise significantly between now and 2050, based on current projections. The populations of India and the group of developing countries are also increasing. Raising their populations out of poverty will require a lot more energy. If that energy comes from fossil fuels, as it will based on their current paths, global emissions will likely be the same or even rise by 2050. This will push global warming to 3-4 degrees. Significantly reducing GHG emissions by 2050 requires effective international cooperation.
The Montreal Protocol
Carry over the materials from last class. Rather than spend class time going through the provisions of the treaty, we will use a recorded review so that we can use the class time for discussion.
Montreal Protocol Review – Video | Montreal Protocol Review – Narrated PowerPoint
The treaty was possible because it balances the needs of the developing world against those of the developed economies. Developing countries get much longer periods to phase out chemicals. The Multilateral Fund was established and funded by the developed world to provide money to the developing world to facilitate the transition to safer chemicals. As you remember from our discussion of Mass. v. EPA, the US Senate sent a strong message to President Clinton that they would not accept the Kyoto Treaty on Climate Change because it had different standards for the developing world. Yet the US Senate had approved the Montreal Protocol with the same structure roughly 10 years earlier. Why the different results? It was about the impact on US business. The Senate thought that the Kyoto Protocol would put US businesses at a disadvantage because they would have to meet different standards for carbon emissions than those in developing countries. Under the Montreal Protocol, US businesses would have to switch to safer refrigerants much more quickly than in developing countries. The difference is that US companies made or controlled the IP for many of the replacement chemicals. The Montreal Protocol would force the rest of the world to buy chemicals from predominately US companies.
While the US did ratify the Montreal Protocol, treaties alone seldom create enforceable rights in the US courts or the basis for federal regulations. The US Congress has enabled the Montreal Protocol with legislation: Stratospheric Ozone Protection Under Title VI of the Clean Air Act.
The Montreal Protocol has been amended through time based on the scientific understanding of the effects of new refrigerants. The first round of approved replacement chemicals did not destroy the ozone but were powerful GHGs. In 2016, the Kigali Amendment was adopted that requires these to be replaced with refrigerants that are not GHGs. While the US has adopted all the previous amendments, the Trump administration did not accept the Kigali Amendment and threatened to leave the Montreal Protocol. The Kigali Amendment has now been ratified.
The Kyoto Protocol
We are next going to briefly review the history of the UN climate negotiations that lead to the Kyoto Protocol.
Review the History of the UN Climate Change Convention.
Read: What is the Kyoto Protocol?
The Kyoto Protocol had binding standards for GHG reductions by developed countries, but relaxed standards for developing countries, which included China. The Kyoto Protocol has effectively been supplanted by the Paris Agreement. It is important because it triggered the Senate to notify the president of what would be unacceptable provisions in a climate treaty.
Read 105th Congress, Senate Resolution 98 – Expressing the sense of the Senate regarding the conditions for the United States becoming a signatory to any international agreement on greenhouse gas emissions under the United Nations Framework Convention on Climate Change. (Passed 95-0)
The Paris Agreement
The Paris Agreement is the current international treaty on climate change. President Obama joined it as an executive agreement, President Trump withdrew the United States, and President Biden has rejoined as an executive agreement.
Scan the text of the Paris Agreement: The Paris Agreement
Read this summary of the treaty: The Paris Agreement – Written Summary
Watch this recorded review of the provisions so we can spend class time on discussion rather than lecture on the provisions:
Paris Climate Agreement Review – Video | Paris Climate Agreement Review – Narrated PowerPoint
The key question is how does the agreement – it is not a treaty for the US – deal with the developing world vs. developed world problem? How does it compare with the structure of the Montreal Protocol? Does it legally require countries to reduce their GHG emissions? What are the problems with its structure? Be prepared to talk about this in class.
Day 17 – March 9
News
28th Annual Tulane Environmental Law & Policy Summit
Great free conference!
Unprecedented snowfall on US west coast is ‘once-in-a-generation’ event
Climate change means more extremes at both ends, not just more warming.
Assignment
We have reviewed the science of climate change and the legal cases on the regulatory approach to climate. After West Virginia v. EPA, regulations under the CAA have been cut off. Congress could amend the CAA to clearly address climate change mitigation, but that is unlikely to happen. The IRA is pure incentives. It did not modify the CCA and thus did not address the West Virginia v. EPA problem. We are now going to look at a case that asks the courts to create a right to a healthy (not warming) environment and then enforce it.
Juliana is the children’s crusade case:
https://www.ourchildrenstrust.org/juliana-v-us
Review the WWW site to get an idea of what is going on with the case. It has been the most visible climate case and has been a great public relations exercise. The district court allowed plaintiffs to put climate change on trial and present days of expert testimony on climate change. For example, see:
The Economics of Climate Change – Expert Report Of Joseph E. Stiglitz, Ph.D.
This is an annotated and edited copy of the 9th Circuit ruling that ended the Juliana case, based on the failure of standing. This is the most liberal/climate change-friendly circuit in the US. Read this and be prepared to answer the questions that I have inserted in the text.
Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (pdf)
The next case deals with federal law nuisance claims against the fossil fuel industry and leads us into the state law nuisance cases.
Background on Kivalina and the permafrost problem
A Wrenching Choice for Alaska Towns in the Path of Climate Change
Alaskan Village, Citing Climate Change, Seeks Disaster Relief In Order To Relocate
Kivalina on the Coast: how an Arctic community is responding to climate change
Climate change thawing permafrost in Northern Canada
Read the majority opinion in Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012). Kivalina – annotated Why did their claims fail?
Resources
Day 18 – March 14
News
Why Russia Has Such a Strong Grip on Europe’s Nuclear Power.
Future warming from global food consumption
Why Biden’s approval of Willow drilling project is ‘a colossal stain’ on his legacy
Assignment
Columbia Law School Climate Change Litigation Databases – the core resource for climate change litigation. Spend a few minutes getting a sense of the number and variety of climate change cases.
Last class we learned from Kivalina that American Electric Power Co., Inc. v. Connecticut (“AEP”), 131 S. Ct. 2527, 2535 (2011), which found that the CAA displaced federal nuisance cases against GHG emitters. State nuisance cases were not at issue in AEP and were not addressed by the Supreme Court. Since AEP, state and local governments (almost all in red states) have been filing state nuisance cases against the fossil fuel industry, primarily against oil companies. These are essentially misrepresentation cases based on the oil industry suppressing and misrepresenting information about the effects of GHGs from fossil fuel use. This resulted in less government regulation and more consumption of fossil fuels, and hence more climate change damages.
We are starting with articles about the claimed misrepresentations. The oil companies followed the denial playbook that was pioneered by the tobacco industry, including using some of the same organizations to manage the disinformation claims. There was a massive state class action against tobacco with a huge settlement fund, which helps drive these claims. Read these articles and be prepared to discuss this misrepresentation theory – pro and con because it is a complex question.
How the oil industry made us doubt climate change – (pdf)
Climate denial timeline for litigation
The first of these three articles is a peer-reviewed article analyzing climate communications by ExxonMobil and showing how its public position on climate change was at odds with its internal knowledge. The second is a criticism of the article, and the third is the response to the criticism by the authors. Scan these to see the arguments.
Next, we are going to read a complaint from a representative case. The same law firm has filed many of these cases so the complaints from most cases are similar. We will first review the docket to see what litigation in one of these cases looks like. These are in reverse chronological order, so scroll to the bottom to start with the earliest documents.
Delaware v. BP America Inc. – Docket
Then read the complaint. This is long and we may not finish on Tuesday. Read the introduction, scan the parties, and read carefully starting with Jurisdiction on page 61.
Delaware v. BP America Inc. – Complaint
Resources
Day 19 – March 16
News
Lawsuit charges Biden administration with violating multiple laws when approving ConocoPhillips’ Willow oil & gas project in Alaska – the complaint
Texas Officials Target Climate Science In Textbooks
Will Juliana come back from the dead? – In re Haw. Electric Light Co., Inc. (March 13, 2023)
Assignments
We will continue with the materials from last class.
We are adding the next legal argument, removal. Thinking back to Civ Pro, remember that if the defendant wants to remove the case to federal court, it must file the petition for removal rather than answering the complaint.
Day 20 – March 21
News
Fossil Fuel Executives See a ‘Golden Age’ for Gas, If They Can Brand It as ‘Clean’
IPCC releases final synthesis report for the current review cycle
CLIMATE CHANGE 2023: Synthesis Trailer
Assignment
Review Docket: Delaware v. BP
From last class: Delaware – Exxon motion to support removal
Delaware v. BP – Motion to remand
We are going to take a harder look at these cases from the oil industry/red state POV by reading:
Texas Rules of Civil Produce Rule 202 allows court-ordered discovery prior to the filing of a lawsuit. This was intended for use in limited situations where testimony was likely to be lost before the lawsuit could be filed. For example, you are retained to represent a victim of a serious automobile accident who is in the hospital and may not survive her injuries. You can use Rule 202 to record a deposition that can be used if the accident results in litigation. Exxon has been using this to countersue the lawyers who are bringing climate lawsuits as a means of harassment and to try to get documents that would otherwise be protected by the attorney-client privilege.
Day 21 – March 23
News
New climate paper calls for charging big US oil firms with homicide
Assignment
Finish the materials from last class.
We are going to look at the second defense to the nuisance claims against Exxon Mobil, the use of state anti-SLAPP statutes to attack the claims as violations of the company’s right to petition the government. (Short review of SLAPP suits.) The anti-SLAPP suits directly tee up the free speech defense that the company wants to get before the Supreme Court. There is some evidence that the fossil fuel industry was an early player in the movement to get the Court to expand commercial free speech protections:
Exclusive: The Fossil Fuel Roots of the Corporate Free Speech Movement (drilledpodcast.com)
The case we are looking at was argued before the Massachusetts Supreme Court. The opinion is conclusionary so we are going to read Exxon Mobil’s brief before we read the court’s opinion on the motion.
Exxon Mobil v. Massachusetts – Anti-SLAPP Brief
Think about whether ExxonMobil is the sort of plaintiff that the anti-SLAPP statute is intended to protect and how that might influence the Mass court. There is no federal anti-SLAPP statute, but the current Supreme Court is protective of commercial speech. Is this a path to get the nuisance cases before the Supreme Court?
Read – Special motion to dismiss pursuant to the anti-SLAPP statute denied
Day 22 – March 28
News
Mississippi Has Invested Millions of Dollars to Save Its Oysters. They’re Disappearing Anyway.
CBS Minnesota: NOAA still cautions potential for “major” spring flooding along Mississippi River.
Just decided – NEPA for Bonne Carre opening: Harrison Cnty., Miss. v. Army Corps of Eng’rs , 5th Cir., No. 21-60897, 3/27/23.
Related case – Fish and Wildlife consultation for Bonne Carre opening: HARRISON COUNTY, MISSISSIPPI, et al. PLAINTIFFS v. U.S. ARMY CORPS OF ENGINEERS DEFENDANT. Additional Party Names: City of Biloxi, Mississippi, City of D’Iberville, Mississippi, City of Diamondhead, Mississippi, City of Pass Christian, Mississippi, City of Waveland, Mississippi, Hancock Cnty., Mississippi, Mississippi Com. Fisheries United, Inc., Mississippi Hotel & Lodging Ass’n, No. 1:19CV986-LG-RPM, 2023 WL 2585661 (S.D. Miss. Jan. 18, 2023)
Assignment
We are going to take a hard look at the Mississippi River and delta as an introduction to our discussion of flood law and adaptation. The key fact about the Louisiana coast is that it is very flat and very low. Review this map to get a sense of the elevation of coastal Louisiana. Focus on the red areas, which are less than 5 foot above sea level:
The story of Louisiana is the story of trying to control the Mississippi and exploit the delta. A key piece of this is the problem of keeping the Mississippi from changing courses and stranding Baton Rouge and New Orleans, which becomes more likely with climate change.
Find the Old River Control Structure on Google Maps and look at it and the river from a satellite view, then follow down the Atchafalaya floodway to Morgan City to see where the water would go if the structure fails.
Read: John McPhee, Atchafalaya, New Yorker (1987) (pdf version)
McPhee is one the top living nonfiction writers. This is his New Yorker article on flood control on the lower Mississippi and New Orleans, with a focus on the Old River Control Structure. It is a fascinating blend of science and history and is very well written.
Now read a modern analysis of the risks:
Part 1 of this series: America’s Achilles’ Heel: the Mississippi River’s Old River Control Structure
Part 2 of this series: Escalating Floods Putting Mississippi River’s Old River Control Structure at Risk
Part 3 of this series: If the Old River Control Structure Fails: A Catastrophe With Global Impact
Delta slides – working
Day 23 – March 30
News
The ICJ’s Advisory Opinion on Climate Change: What Happens Now?
Assignment
Finish presentation from last class. Complete the readings for last class if you are have not done so.
Day 24 – April 4
News
Venice Is Saved! Woe Is Venice.
Which Louisiana parishes have lost the most population? See the map here
Assignment
Slides for the class discussion – Lessons from the New Orleans Hurricane Cases
I have the videos and the corresponding PowerPoints of the lecture presentations on suing the federal government for money damages. You should read the materials and watch these before class. We will discuss them in class, which should be interesting for all of us. (Remember, the video was made from the PowerPoint deck. I am providing the deck as an alternative way of viewing the presentation.)
Hurricane Katrina and the subsequent litigation attempting to hold the United States responsible for the damages due to the levee breaches have become part of the mythology attempting to shift the blame for catastrophic flooding from bad local land-use decisions to the federal government’s failure to protect the communities which made those decisions. The starting point for understanding this law is the Constitutional and statutory standards for suing the United States for money damages for torts. This is governed by the Federal Tort Claims Act. This is an explanation of the FTCA that I have prepared for use in class:
Introduction to the Federal Tort Claims Act
This is the form for filing an FTCA claim. Review it so you understand the required information:
Form 95 – CLAIM FOR DAMAGE, INJURY, OR DEATH
Video – Suing the Federal Government: Sovereign Immunity and FTCA History
PowerPoint – Suing the Federal Government: Sovereign Immunity and FTCA History
Video – Filing an FTCA Claim
Narrated PowerPoint – Filing an FTCA Claim
The Discretionary Function Exception (DFE)
The DFE makes proving a case under the FTCA fundamentally different from a private tort case. The DFE is intended to protect government decision-making from collateral attack through tort litigation. It is the second malpractice trap for lawyers in the FTCA. As you will see, it goes against conventional torts jurisprudence, sheltering the government from liability for actions that would result in judgments and even punitive damages against private parties.
Video – Texas Department of Public Safety film of the aftermath of the Texas City Disaster
WWW sites – The Texas City Disaster. April 16, 1947 – Galveston News
Background for the Dalehite case in the reader.
Federal Tort Claims Act Reader
These are edited versions of the key cases setting out the construction of discretionary function exception in the FTCA.
Video – Federal Tort Claims Act – DFE
Narrated Powerpoints – Federal Tort Claims Act – DFE
Day 25 – April 11
News
Storms, insurance turmoil fueling Louisiana population slides
Louisiana v. Biden – Attack on the study committee working on the value for the social cost of carbon. The 5th Cir. found that plaintiffs had no standing.
Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County – Exxon Brief – Artful pleading vs. well-pleaded: can the plaintiffs escape removal by just not mentioning federal law, or should the court look beyond their pleadings? Click the link and look at the highlighted material on pages 8&9.
Assignment
We will finish our discussion of the hurricane cases from last time.
LA Homeowner’s Insurance Cases and Crisis of Cost and Availability
Private residential and small business insurance policies (State Farm, Farmers, Allstate, etc.) do not include flood insurance as part of their homeowner’s insurance. Almost all residential and small business flood insurance comes from the federal government through the National Flood Insurance Program (NFIP). We will look at that program later in the class. Most people are not required to have flood insurance so after every major flooding event attorneys sue homeowner’s insurance companies to try to get coverage for clients who do not have flood insurance. We are going to look at two Louisiana cases that to see how the courts handle this problem. This will be background for our class discussion of the homeowner’s insurance crisis in Louisiana.
When there is a major flood event, we have two situations. The first is homeowners who do not have flood insurance but suffer flood damage, either with or without wind and rain damage that is covered by their homeowner’s policies. When their home floods, they bring legal claims arguing that they thought that their homeowner’s policy covered flooding. This case deals with the construction of insurance policies. Read through paragraph 72. We are not reading the remainder of the case, which is a technical fight over which version of the bad faith penalties statute applies in the case. I have annotated the case so that it will be a fast read.
Sher v Lafayette Insurance Co – annotated
The second situation is homeowners who have purchased flood insurance policies and suffer flood damage, either with or without wind and rain damage that is covered by their homeowner’s policies. The Nelson case looks at the application of the Louisiana Valued Policy Law when a property is covered by a flood policy as well as a homeowners policy. The LVP requires insurers to pay the face value of the policy if the house is a total loss. The LVP prevents insurers from basing premiums on a higher value for a house than they are willing to pay if the house is a total loss. For example, you insure at $800,000 for your New Orleans home, because that is its current market value. That market value includes an inflated cost for the land, which is not damaged by flood or fire. Thus, when your house burns to the ground, the insurer only offers you $600,000 because that is all it will take to rebuild your house. You have paid the insurer for an extra $200,000 in coverage which you cannot collect. If you can prove a total loss, the insurer must pay the full $800,000. The problem arises when the damages are covered by two different policies. Assume the house is a total loss after Hurricane Ida, but half the damage is from flooding – covered by the NFIP policy – and the other half is wind and rain damage, covered by the homeowner’s policy. Is the LVP triggered because the house is a total loss, or is not triggered because the total loss has to be caused by the risks covered by the homeowner’s policy? (The LVP cannot be applied to the NFIP policy because that is legally a government benefit that is not reached by state law.) Focus on understanding Louisiana’s Valued Policy Law and how it affects situations where there is both flood and wind/fire damage.
Nelson v. Americas Ins. Co., No. CV 17-850-JWD-RLB, 2019 WL 5684503 (M.D. La. Nov. 1, 2019)
Watch this video review of these cases so we do not have to go over the basics in class – Louisiana Insurance Law and Flooding.
Is Tort Law Salvation or Damnation: Why Does Insurance Cost So Much in Louisiana?
Read these background materials for our discussion of the homeowner’s insurance crisis in Louisiana. (You can Google Louisiana insurance crises for more information.) We are going to talk about the politics of tort law as a remedy for injuries and about the economics of insurance. Having taken torts, you are well-versed in the plaintiff’s lawyer’s views of the tort system. These readings will acquaint you with the insurance company side. (Note – the truth is somewhere between the extremes, but it is also true that you never get money from insurance companies, only from other policyholders.)
Triple-I: Louisiana’s Insurance Crisis Grew After 2020-21 Hurricanes – this is a quick review of recent hurricane losses in Louisiana.
Affordability of Personal Auto Insurance 3x Worse in Louisiana Compared to Most Affordable State, IRC Study Finds – auto insurance in LA is as bad as you expected.
IT’S NOT JUST THE WEATHER: The man-made crises roiling property insurance markets – This is an insurance industry critique of the effects of the plaintiff’s bar on insurance costs. Read the general information and the Louisiana section.
Day 26 – April 13
News
Clouds are a wild card in climate models because we do not understand all the factors that affect their formation and effect on warming. This paper finds a potential offset of some of the warming potential for methane because it may increase the formation of clouds.
Dangendorf, S. et al., 2022. Acceleration of US Southeast and Gulf Coast Sea-Level Rise Amplified by Internal Climate Variability. – This comes out of Tulane. The caveats at the end of the paper are important, but are being ignored by the media.
Assignment
We will finish our discussion of homeowner’s insurance, then start with flood insurance.
We are going to take a deep dive into the National Flood Insurance Program. Prior to the NFIP, there was no flood insurance available for residential housing and small businesses. This limited development in coastal and high risk inland flood areas to extremely cheap housing or housing for the those who were rich enough to not care if their house was destroyed by flooding. Starting in 1968, this federal benefits program fueled a massive migration to high risk flood areas on the rivers and the coast by providing highly subsidized flood insurance. This has had massive unintended consequences as climate change increases the flood risk for these areas and many of the property owners can not afford unsubsidized rates. Many lawyers and insurance brokers do not understand the NFIP policy limitations and claims process. The NFIP looks like insurance, but the policy is a federal regulation, not a contract. Filing and appealing a claim are governed by federal regulations and subject to administrative law constraints. This is an area fraught with bad client counseling and malpractice. We are going to explore the policy issues posed by the NFIP. We also going to get into the weeds so you will know enough to competently counsel clients on the NFIP.
A Brief Introduction to the National Flood Insurance Program
FEMA, Answers to Questions About the NFIP (April 2022)
Slides – Introduction to Flood Risk and the NFIP
This is the official guide to the NFIP. Read to p. 42. There is a glossary at the end that you should refer to it as you see new terms.
Day 26 – April 18
News
The New York Times: Germany Quits Nuclear Power, Ending a Decades-Long Struggle.
Historic Fort Lauderdale Flooding Swamped Homes
Thousands of acres are underwater in California, and the flood could triple in size this summer
April 22nd – Earthday 2023, the 53rd Earthday. Watch the video.
Assignment
We will carry over the materials from last class.
LSU Flood Maps Site – Look up some addresses and play with the maps. This will give a quick introduction to flood maps.
Review the standard policy for residential flood insurance: Dwelling Form Standard Flood Insurance Policy F-122 / October 2021
Focus on the specifics of what is covered and what is excluded. After every major flood, there are a lot of news stories about how people are being cheated by the NFIP underwriters. A lot of these complaints are driven by the insured and their lawyers not knowing the difference between the limited coverage of the NFIP policy compared to a usual homeowner’s policy.
Contesting NFIP claims. Since NFIP insurance is a federal government benefit, the claims and their appeals are governed by federal administrative law, rather than state law. These two cases outline the process and the pitfalls if you treat an NFIP claim like a state insurance claim. I have provided a video review to facilitate our classroom discussion of the cases.
Gibson v. American Bankers Insurance Co., 289 F.3d 943 (6th Cir. 2002) – annotated
DeCosta v. Allstate Ins. Co., 730 F.3d 76, 77 (1st Cir. 2013) – annotated
Day 27 – April 20
News
Louisiana will be at less risk from flooding in 50 years under new $50 billion coastal plan
Leaving Leeville – Louisiana coastal migration 100 years ago.
Remembering winter extreme weather: Winter Storm Uri 2021
A key part of America’s plan to slash carbon emissions: Plug in cars and trucks.
The Hill: Texas bills call for renewables to help save declining fossil fuel sector.
Liquified Natural Cash: How Methane Exports Reverse Climate Progress, Harm Consumers, and Endanger Communities – how the natural gas industry has used the Ukraine war to lock in long-term purchased agreements.
Republicans seek to repeal renewable tax credits, pass energy package in debt limit proposal
Assignment
Finish materials from last class and discuss living with climate change. No new technical materials for the exam.
Exam Information
POSTED ON APRIL 7, 2023
Update – The exam will have only multiple-choice questions. (Some questions will only have 2 choices – true/false.)
If any questions depend on detailed information about a statute or regulation, it will be provided as part of the exam materials.
I have posted some study questions on Moodle so you can get a sense of the types of questions that will be on the exam. These are sample questions and are not meant to be comprehensive. The slides and presentation materials are a good review of the key information in the course when you are preparing for the exam.
The exam is in class, closed book, using Exam4. The exam questions will be on paper – it is not embedded in the software for in class exams. If this is a problem for you, you should talk to Assoc. Dean Henry for any necessary accommodation.
If you feel any of the multiple-choice questions are problematic, you may add a section to your exam in the Exam4 software to list the question number, your answer, and your comments for each problematic question. I read these before the exams are graded and exclude any questions that I agree are problematic.
Exam Q & A – I will post questions from students and my answers on this page to assure that any important information is available to all students. The most recent questions will be posted at the top.
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