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Sample collection of case documents - O'Reilly
This class will review the issues of Coastal Louisiana, which will bring the folks who were not in Climate Change law up to speed, and will broaden the discussion for those who were in the class. The reading is a draft I presented to the Vermont Environmental Law Forum in the fall:
I will also do a detailed presentation on the geology and hydrology of Mississippi Delta and effect of climate cycles on the delta. I will link to slides later - I am revising the set I did in the fall.
Delta Cycles, Climate Change, and the Future of the Louisiana Coast, LSU Law School, October 2014.
Guest Speaker - Chris Swarzenski (scroll down this page for a picture and mini-bio)
I am sending you another article by email that I cannot post on this public site.
Background Readings:
The Clean Water Act regulates wetlands. The Army Corps of Engineers administers this through the 404 process.
Army Corps of Engineers 404 Permit Process
A key premise is that there will be no net loss of wetlands. In order to allow dredging and construction in wetlands, the Corps has created a program of artificial wetlands building called mitigation banks. The owners create the artificial wetlands, then sell credits to people who want to destroy wetlands. If you want to destroy 0.5 acres of wetlands for your fish camp, getting your 404 permit might require buying 1.5 acres of mitigation, which might cost $80,000 an acre. Since the destroyed wetland is gone forever, mitigation banks are intended to last forever. Thus the problem: can you accept relative sea level rise and still allow mitigation banks on the coast? Absurd, obviously, you think. But see:
Chef Menteur Pass Wetland Mitigation Bank
There are several potential parts to this project.
What is the legal framework for mitigation banks, in particular, the longevity requirements?
Has mitigation banking worked, even in ideal locations?
What are the scientific issues that impact the Chef Menteur Pass Wetland Mitigation Bank?
What process did the Corps go through to approve this?
Is the approval complete?
Did the Corps follow the law?
How can you attack this project
What are the relevant cases and their pleadings?
What would a general litigation guide to coastal mitigation banks look like?
Blue Carbon is the carbon stored in wetlands:
Blue Carbon is scheme to protect wetlands by monetizing the carbon in them. This will then create an incentive to preserve them by selling Blue Carbon credits, and to create new wetlands, again by selling credits. In the US this would be a way to double sell a mitigation bank.
Is this a legitimate idea or a scam?
What would be legal framework in the US?
What is the international legal regime to support this?
How has it been proposed for the LA coast?
Would would be the legal process necessary to sell Blue Carbon in the US?
Would this conflict with the law on mitigation banks?
If Blue Carbon is not a mitigation bank, how do you assure that it is perpetual?
Would be it be fraud to sell Blue Carbon on a disappearing coast?
How could this be stopped on the LA coast?
Wax Lake is an artificial channel/diversion of the Atchafalaya River, which has built some land. Without regard to whether the Wax Lake Delta is proof that diversions work or proof that they cannot matter, it raises an important legal question about who owns the land that would be created. A related issue would whether the state would be liable for the loss of private land if the diversion turns out to destroy land? This will involve LA law, but should also take a look at the results in other states. Texas has cancelled some beach restoration projects because the state would not own the land. In LA, if the state does not own the land, the state has to prove significant public benefit to offset the benefit to the private owner. This would also need to be evaluated to determine if a diversion would be an unconstitutional transfer of public resources to a private party.
The Endangered Species Act attempts to protect environments by using endangered species as surrogates. The Act tells us that if a species we do not really can about, like a newt, is endangered, we can use the law to protect the habitat that it lives in. Since what we really care about is the environment, it mostly works out OK. With climate change, some environments will migrate to maintain the same climate zone. Forest will move up mountains as the climate warms. Wetlands and coastal environments will migrate inland as sea level rises. If this is not allowed to happen, a lot of species might become endangered or even extinct. There are two problems in addressing this with the ESA. First, the act does not seem to recognize prospectively endangered species. Second, can the law be used to protect a future habitat in anticipation that it will become the home of species that will be endangered or dead if that environment is not available for them to migrate to. What does ESA litigation tell us about that we can use? What would be good sample cases and pleadings for create a litigation guide? If the ESA will not work on its own, how can NEPA be used to leverage it or replace it for this?
An important issue related to who will own the land created by restoration schemes - if any is created - is who own the land that was once wetlands or even highlands and is now underwater? It is pretty clear that once coastal law it is submerged, it belongs to the state, but the state has not been as diligent as it could in asserting these rights because of politics. This land's greatest value is from oil leases. (Although on-shore production is only fraction of what it once was.) In 1952, the Legislature passed the "Freeze Statute" - R.S. 9:1151 - which allowed the land owners to keep their mineral servitudes when their land became public as it subsided. (Amended in 2001 to include subsidence.) For a good review of the law, see:
A Sinking Coast Bubbles up Legal Challenges
The Freeze Statute appears to violate the LA Constitutional provisions preventing giving away public property to private individuals. Giving these mineral rights away would also violate the public trust doctrine. There are ways to offset this value by getting something of value back for the public. This was used by the Attorney General to find that the law was constitutional, at least in theory:
OPINION NO. 07-0137 - Constitutionality of the Freeze Statute and Regs
How to find state claims to coastal land and applicable mineral leases:
The SONRIS WWW site (loads slowly)
Questions to be addressed:
Is this analysis correct, based on the assumptions it uses?
Where does the Public Trust Doctrine come in?
How has it actually been used, i.e., what is the state getting?
There are a lot of shared leases - has the state actually gotten anything?
What does it mean to give up these rights on land that is still subsiding, meaning that the state is prospectively giving away the people's rights?
How does this law figure into coastal restoration?
How has it been modified to "trade" restoration rights for oil rights?
What do the agreements look like?
What would be the implications of declaring that a transfer was illegal, i.e., does the landowner have to pay back the income?
Should this be a two person, or perhaps more project? One to sort out the contracts, one to sort out the law on giving away state property, one to work on the law on getting standing and then undoing these deals?
What is a rolling easement?
Why is it important for rising sea level?
How does it raise the issue of whether cumulative impact means that bulkheads and barriers should not be permitted with a nation wide 404 permit?
What cases and pleadings would go into a rolling easement litigation manual?
What are the special issues for Louisiana?
(Shane Buchler is working on this topic.)
What are the legal issues posed by the NFIP on the LA coast, including the impact of the recent executive orders:
Fact Sheet: Taking Action to Protect Communities and Reduce the Cost of Future Flood Disasters
For the Executive Order: https://www.fema.gov/floodplain-management-ffrms
For the flood-risk reduction standard, https://www.fema.gov/floodplain-management-ffrms
(Travis Ducote is working on this.)
Discuss topics
As discussed last class, we will be working on our topics again. Email me a short topic statement paragraph and outline before class so we will have something to talk about. Then you can fill us in with what you have learned on the topic.
As I find materials your topics, I will add them as comments to the topic pages, at least until we get farther along when we will restructure these pages.
Tulane Environmental Forum - Free for students.
Given the break, I want to return to the topics again and get a research update from each of you. I need an updated topic statement and brief outline by Monday night so I can review them before class. I am not making an additional reading assignment for Tuesday because I want to see progress on the papers. Those of you who have not made progress you who you are.:-)
Meet and discussion research
Meet and discuss research.
Meet and discuss research.
Scientists discuss new names for climate change - satire
Time to read some law. I am starting with the shorter pieces. The first is the original petition in the Levee Board Litigation:
The Original State Court Petition
We will look at the claims made by the plaintiff. The defendants moved the case to federal court, and the next important document is the order blocking removal. We are only going to read the last 18 pages or so, which is the part where the court finds the essential issues that keep the case in federal court:
Order blocking removal from federal court back to state court.
Read: ii. Whether Plaintiff’s Claims Raise a Substantial Issue of Federal Law - 65 to the end.
Since this is pretty short, I am not going to divide it up. You need to get class on time to participate in the discussion. We will have additional legal reading and discussion on the 30 March class.
I want to see rough drafts by 6 April and we will discuss drafts and progress in class 7 April.
The order dismissing all of the claims on specific legal grounds.
Original Pleading – Parish of Plaquemines v. Total Petrochemical & Ref. USA, Inc., etc
Let's see how they structured the Parish claims to avoid removal and whether it makes sense.
They were successful in getting returned to LA state courts.
No in class session. This is a work and meeting week for papers. Your draft is due Sunday the 12th by midnight so I have time to read them by class on Tuesday the 14th. I will be available for meetings, just email me to set up a time.
Meet class and discuss papers.
Meet and discuss papers. If I have not seen your first drafts, it should be submitted by Sunday night. We will discuss the due dates for revisions and the final paper.
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