Assignment 21

Additional Assessments

An issue with online education is that class time is traditionally measured by butt time – scheduled minutes of class time. Narrated PowerPoints usually run less time than the length of an ordinary class period, for the reasons discussed below. While students will likely spend more time on the slides than the nominal running time, I am adding periodic assessments on some of the materials that we will cover. These give you feedback on your knowledge of the material and count toward the required time spent on pedagogy.  I will add your first assessment exercise to Moodle when I post the slides for this assignment. (This will be moved to a future assignment because this one turned out to be so long.) Please complete it when you finished your readings and review of the PowerPoints. You may try the quiz more than once. Let me know if you have problems accessing the quiz.

Assignment 21

While we talked a bit about rulemaking as part of our discussion of Mass. v. EPA, we are going to do an introduction to rulemaking and the judicial review of rules. (This will be a review for those of you who have had Administrative Law.)


Todd Garvey. “A brief overview of rulemaking and judicial review.” Washington, DC: Congressional Research Service (2017).

The Reg Map for Informal Rulemaking – The Reg Map for Informal Rulemaking – Reading Version

This will help clarify the process of notice and comment rulemaking

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 98 S. Ct. 1197, 435 U.S. 519 (1978)

We are reading Vermont Yankee to illustrate the use of rules to limit adjudications and to see the court’s reasoning for finding that judges do not have the authority to require procedural rights in rulemaking beyond those in the APA. We will review NEPA in a future class, so pay attention to the NEPA question in the case.

Teaching Materials

Video – Introduction to Rulemaking / Slides – Introduction to Rulemaking I / Introduction to Rulemaking II / Introduction to Rulemaking III

Warning – the video is long. I have broken the presentation into three slide decks to make it easier to watch. Since this was long before getting to Vermont Yankee, the discussion of that case will be part of the next assignment on NEPA. The assessment will also be moved to a future assignment.


Assignment 20

Using the PowerPoints Effectively

The narrated PowerPoint presentations are very dense. Using the same slides as I use in class, the class presentation takes about twice as long as the recording. This is because the classroom performance has more pauses and more interruptions and because I talk slower in class. I am giving you the slides as well as the videos with the expectation that you can page through the slides (outside of autoplay) and listen to the narration slide by slide.  I record these slide by slide so that they can be played slide by slide. It takes more time than just recording a lecture and flipping through the slides, but it makes it easier to use them for review. I post the videos to meet the ADA requirements of captioning for all posted materials with audio content.

Assignment 20

We will return to the climate ligation for a later class, once the most recent decisions have been reported. At this point in the course, we are going to start looking at adaption. We are going to build on our earlier discussion of the delta cycle before we turn to flood ligation and the National Flood Insurance Program.


2017 Master Plan

These were assigned as resource documents earlier in the course. It is now time to take a harder look at them. Review the Master Plan and the LA SAFE extension.

Teaching Materials

Louisiana Coastal Geology: Shaping the Future of the Louisiana Coast – Prof. Roy Dokka

This is a recorded Climate Law class from 2010. The speaker is Prof. Roy Dokka, a geology professor from LSU who also worked with a geology research team from Caltech. He brought high precision elevation monitoring to Louisiana, which documented the effects of subsidence around the coastal areas. Sadly, he died shortly a couple of years after this presentation, or I would have brought him to class. It is an unbiased view of the coast and restoration, without reference to how climate change would speed up the process. His insights are as sound today as when this was recorded. Climate change as only strengthened his case about the long-term future of the coast.

Assignment 19


Trump rolls back Obama fuel economy rule, increasing emissions during a climate crisis

This seems to be a systematic process of continuing to rolling out controversial rules while the press is diverted and the courts are dysfunctional.

New Entry on the Online Class Question Page.

Assignment 19

The first international climate mitigation treaty was the Kyoto Protocol. We will review it, looking for how it handles the division between the developed and the developing world and the question of enforceable limits. The CRS report we will read also discusses why the US did not ratify the Kyoto Protocol. We will then look at how the Paris Climate Agreement tries to overcome the problems of the Koyoto Protocol. I will post narrated PowerPoints after you have had a chance to read the assigned materials.


Fletcher, Susan R., and Resources, Science, and Industry Division. “Global climate change: the Kyoto Protocol.” Congressional Research Service, Library of Congress, 2005.

The Paris Agreement Summary

Leggett, Jane A., and Richard K. Lattanzio. Climate Change: Frequently Asked Questions about the 2015 Paris Agreement. Congressional Research Service, 2017.

LEGGETT, J. “Potential Implications of US Withdrawal from the Paris Agreement on Climate Change.” Congression Research Service (2019).

Teaching Materials

The inside story of the Paris climate agreement – Christiana Figueres, organizer of the Paris Climate Conference for the UN. This is a TED talk by the organizer, so it is a bit biased. It is still an interesting look into the process.

History of UN Climate Agreements – Slides – History of UN Climate Agreements

The Paris Agreement Review –  Slides – Paris Agreement Review


The Paris Agreement – Full Text





Assignment 18

Start here: Video – Class Intro and Discussion – 26 March 2020

Going Forward

We are now in uncharted waters. Given the rapid spread of the disease, closing the university makes good sense. Our moving online will assure you do not lose credits and will be able to graduate on time. Parts of law school can work well as online education and other parts will suffer. Even the parts that can work well take a lot more development time than a week’s notice. The faculty will do our best, and we will try to assure that you – the students – do not suffer more than is unpreventable from this abrupt change.

The procedure in this class will change from day to day assignments tied to specific days in class to a series of assignments to be completed as you are able. You will need to work through all of them by the end of the term, but you have the flexibility to work as your schedule permits.  This recognizes that many of you have personal responsibilities that have expanded since the closing of the university, K-12 schools, and many businesses. You will need to read more and work more independently. Since this is the way you will have to work once you graduate, it will be a good transition to your post-law school world. We will still do an emailed-in take-home exam, which works well with our move to online.

I  have created an Online Class Question Page. If you email questions to me that I think should be shared with the class, I will post the question (deidentified) and the answer on this page. Please feel free to ask questions about the course and about the materials and will answer as quickly as I can. I have also created a page for both of my classes on COVID-19. This is not an ongoing analysis of the pandemic. It is a scratchpad for materials that I want to bring to the attention of the classes. I have created a backup WWW site – – that is hosted in Canada. If the LSU site goes down, check the backup site for information and, if necessary, class materials. I recorded a podcast on The Constitution and the Coronavirus for the National Constitution Center.


These satellite photos show how COVID-19 lockdowns have impacted global emissions

Wind Energy Group Says $43 Billion at Risk from COVID-19

Coronavirus Holds Key Lessons on How to Fight Climate Change

Why the COVID-19 Response Is No Model for Climate Action


Introduction to Treaties and Executives Agreements, plus an introduction to the science of the Montreal Protocol (Slides – Treaty and International Law Basics / Slides – CFCs and the Ozone Hole) – video of the presentation from class. I recorded this for folks who had to miss last class (March 12)

The Hole – A film on the Montreal Protocol, narrated by Sir David Attenborough – watch this as an introduction to the Montreal Protocol.

Video – The Montreal Protocol / Narrated Slides – Montreal Protocol


Assignment 18

We did not get to the Baltimore Climate Case on the 12th. Since then, a consumer protection suit by Massachusetts against Exxon Mobil was remanded back to state court. We will look at the complaint – Massachusetts v. Exxon Mobil Corp and then the remand order when it becomes available. A critical case has just been decided – Conservation Law Foundation v. ExxonMobil (2020) – which we will look at in a later class, along with these materials.

The Montreal Protocol

We will return to the Montreal Protocol after looking at these two climate cases. Read these documents that summarize the Protocol. I will post narrated PowerPoint slides as they are finished.

Summary – Montreal Protocol on Substances that Deplete the Ozone Layer

Report on the World Bank Multilateral Fund for the Implementation of the Montreal Protocol (2007)

Key provisions to understand:

How does the Protocol resolve the conflict between developed and developing nations?

What is the purpose of the Multilateral Fund? Who provides the money?

How is Protocol structured to allow it to evolve through time?

Resource Documents

Sunstein, Cass R. “Of Montreal and Kyoto: A Tale of Two Protocols.” Envtl. L. Rep. News & Analysis 38 (2008): 10566.

Handbook for the Montreal Protocol on Substances that Deplete the Ozone Layer. Fourteenth edition (2020)

Environmental Protection Agency. “Regulatory Impact Analysis: Protection of Stratospheric Ozone.” (1988).

Day 17 – March 12



We will look at the Baltimore case from last class, then to turn to the Montreal Protocol. I will introduce the topic with a lecture on treaties and international agreements in the US courts:

Slides – Treaty and International Law Basics

Then we will review the ozone hole problem and its relation to climate change. These background articles are either short or you only need to scan them as background for the discussion

Molina, Mario J., and F. Sherwood Rowland. “Stratospheric sink for chlorofluoromethanes: chlorine atom-catalysed destruction of ozone.” Nature 249.5460 (1974): 810. (the first ozone hole paper)

This is the first paper describing the problem. Just scan this as background. It is notable for how quickly the world responded.

The Hole – A film on the Montreal Protocol, narrated by Sir David Attenborough

A 5 minute overview of the CFC problem.

Chlorofluorocarbons and Ozone Depletion – A National Historic Chemical Landmark

Additional non-technical background information on the treaty.

EPA, Stratospheric Ozone Protection: 30 Years of Progress and Achievements (2017)

The impact of the treaty on ozone.

Velders, Guus JM, et al. “The importance of the Montreal Protocol in protecting climate.” Proceedings of the National Academy of Sciences 104.12 (2007): 4814-4819.

Just look at the abstract.

Slides – CFCs and the Ozone Hole

Day 16 – March 10

Class News

LSU has canceled foreign study programs because of coronavirus and is considering canceling in-person classes if there is an outbreak in Baton Rouge. If in-person classes are canceled, I give you specific information about class on this blog. I am prepared to post online lectures and narrated PowerPoint slides, and we can use Moodle for review quizzes. We can also use the Moodle discussion forum, email, and Zoom. Since testing has just begun in Louisiana, our lack of cases is more likely a lack of information. It is likely that we will have local cases before too long, at which point the university will make a determination about in-person classes. Since our exam is a takehome, we are in good shape there. I will post it on Moodle and you will return it by email to my AA so there will not need to be any in-person visits to the school.


Baltimore Climate Case – This was just decided. It adds a failure to warn and a conspiracy to hide climate change information claim. The federal court refused to grant removal, leaving the case to continue in state court.


This assignment looks at the state law nuisance cases brought against the oil companies. We are going to look at two cases from the 9th circuit that illustrate a basic split in how the courts are handling these cases. The key to plaintiffs succeeding in these cases is to keep them in state court. There are repetitive sections in the cases dealing with climate science. You can skip those. Focus on the different legal theories and how they lead to different results. These cases are both still on appeal. If we do not finish these, we will continue the discussion next class.

County of San Mateo v. Chevron Corp. 2017 WL 3699867 (N.D.Cal.) – removal order

The key to being dismissed for federal preemption is to be in federal court. The plaintiffs filed in state court and this is the order of remand to federal court. What are the defendants’ arguments for removal, i.e., why do they stay that plaintiff’s claims must implicitly depend on federal law?

Cty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934 (N.D. Cal. 2018) – remand to state courts

How does the trial court justify remand, i.e., what are the unique state claims and the rationale for why they are not preempted, at least at this time.

City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017 (N.D. Cal. 2018)

This case dismisses the state claims as preempted by federal law. What is the court’s rationale? Be through – this will be key in the long term for state-based climate cases. (You do not need to rehash the court’s climate science – this is the judge that had the science hearing,)

City of Oakland v. BP p.l.c., No. C 17-06011 WHA, 2018 WL 3609055 (N.D. Cal. July 27, 2018)

This is an additional order that finds that there is no personal jurisdiction against several of the oil companies. Give us a good analysis of why – if the plaintiffs cannot get jurisdiction, their attempt to get enough companies in court to have a significant share of emitters is doomed

Day 15 – March 5



Read this Description of the Juliana Case, then read the most recent (final?) decision: Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (You do not need to read the lengthy attachments to the opinion.) Be sure to read the dissent’s theory that the constitution contains a duty for the government to protect nature. The case falls on a hybrid of standing and political question. Figure out what this means, and what you think of the prospects for the case to revised by en banc review or Supreme Court review.


Juliana v. United States, No. 6:15-CV-01517-TC – First Amended Complaint

Day 14 – March 3


EPA Science Panel questions science in fuel economy rule


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 raises the issue of whether the CAA can really be used to regulate GHGs.  It gets into the guts of the CAA and is difficult to sort out. I have annotated the case to help you think about it and to facilitate our class discussion.

You should also review the EPA information on the PSD program and BACT.


Carbon Dioxide Emissions Coefficients

40 CFR Parts 51, 52, 70, et al. Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule

State Implementation Plan Process

Day 13 – February 27



We are not meeting class today. As I announced in last class, my plan was to have you watch a video of a climate conference for this class. Unfortunately, at this point the video is not ready. Since many of you may have made plans based on the class not meeting, I am not scheduling a class session for 27 Feb. I will keep you posted about the video and the related readings to make up this class.

Day 12 – February 20



American Electric Power Company, Inc. v. Connecticut, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011) – Study Guide

This case sets up the preemption argument that all climate change lawsuits based on suing oil companies will have to answer. Read it carefully.

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

Scan the case to see how the court analyzes the preemption of the tort claims. Read the recusal story because it is fun. (For reference – Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010) – recusal order)

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

Scan the case to see how the court analyzes the preemption of the claims.


Background on Alaskan Villages


A Wrenching Choice for Alaska Towns in the Path of Climate Change

Alaskan Village, Citing Climate Change, Seeks Disaster Relief In Order To Relocate

The Village That Will Be Swept Away


Day 11 – February 18


Warmest January on Record Globally | Weather Underground


Finish Mass v. EPA.

Annotated: Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 FR 66496 Tuesday, December 15, 2009

This is the key regulatory document for GHGs under the CAA. It has not been rescinded by the Trump administration despite calls for it to do so by antiregulatory forces. Doing so might limit the preemptive effect of the CAA on state lawsuits, as we will see in later cases.

This is where we get into the adlaw weeds. Mass v. EPA found that the EPA had the authority to regulate GHGs. Before it can do so, it must issue an endangerment finding explaining the basis for the secretary’s decision that GHGs are pollutants that endanger public health. This is not a rule, but it is the precursor to any rules dealing with GHGs under the CAA.  Load this into Acrobat or Acrobat reader and you can use the bookmarks to find the highlighted text. Read through that to see what is going on in this endangerment finding.

Technical Support Document for the Findings (PDF)

Read the Executive Summary.

Day 10 – February 13



Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – Study guideSlides – Mass v. EPA

Mass v. EPA is the key case that begins the regulatory saga for GHGs. We are going to read this case very closely. You have probably read some of it in other classes. Standing is very critical because with Kennedy gone, it is likely that there are five justices on the current court who would side with the dissent in this case. That could undermine all climate cases. The study guide follows the case so you follow it as you read the case.

Day 9 – February 9


The world’s oceans are speeding up — another mega-scale consequence of climate change

Ocean currents are changing. They have a profound effect on coastal climate. Off Florida, changes in the Gulf Stream also affect local sea level.

Is CO2 capture a viable strategy or a costly distraction?

The Telegraph: Germans who live near wind turbines should be paid compensation, says government minister.

The Guardian: ‘Overwhelming and terrifying’: the rise of climate anxiety.


We are going to look at the pathways to decarbonization, i.e., what we have to do to reduce GHGs to manageable levels. This will set up the discussion of the Green New Deal and the legal tools necessary to achieve meaningful decarbonization. This is a fairly long read, although it is not very technical. This is a realistic guide to what can be done, at what cost, and at what timeframe. Take the time to review it and the slied. The key takeaways are what needs to happen in different sectors of the economy to get to decarbonization.

Williams, James H., et al. “Pathways to deep decarbonization in the United States.” The US Report of the Deep Decarbonization Pathways Project of the Sustainable Development Solutions Network and the Institute for Sustainable Development and International Relations, Energy and Environmental Economics, San Francisco, CA, accessed Apr 23 (2014).


Slides – Pathways to deep decarbonization in the United States

Day 8 – February 6


Bloomberg: Wind Turbine Blades Can’t Be Recycled, So They’re Piling Up in Landfills.


Finish delta talk. Take a look at this background information.

Turner, R. Eugene. “The mineral sediment loading of the modern Mississippi River Delta: what is the restoration baseline?.” Journal of Coastal Conservation 21.6 (2017): 867-872.

Turner, R. Eugene, et al. “Net land gain or loss for two Mississippi River diversions: Caernarvon and Davis Pond.” Restoration Ecology 27.6 (2019): 1231-1240.

Pictorial Account and Landscape Evolution of the Crevasses near Fort St. Philip, Louisiana (Rotated Maps – Port St. Phillip crevasse study)

Look at the pictures and read the summary sheet: Factsheet – Pictorial Account and Landscape Evolution of the Crevasses near Fort St. Philip, Louisiana



2017 Master Plan


Day 7 – February 4


Mapping Migration in the Face of Climate Change


Finish materials from last class.

Day 6 – January 30


Summary of the Climate Leadership and Environmental Action for our Nation’s (CLEAN) Future Act (2020)  – The full text of the bill (622 pages)


We are going to spend a day looking at Louisiana and the Mississippi Delta.

Reading: John McPhee, Atchafalaya, New Yorker (1987)

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 fascinating and very well written.

Find the Old River Control Structure on Google Maps and look at it and the river from satellite view, then follow down the Atchafalaya floodway to Morgan City to see where the water would go if the structure fails. Read this as well: If the Old River Control Structure Fails: A Catastrophe With Global Impact

More information on the Old River Control Structure.

Review this map to get a sense of the elevation of coastal Louisiana: State of Louisiana—Highlighting Low-Lying Areas Derived from USGS Digital Elevation Data By John J. Kosovich 2008

The Mississippi Delta Cycle

Day 5 – January 28


Final Rule: The Navigable Waters Protection Rule

This rule dramatically shrinks the area of wetlands protected by the Clean Water Act.

Germany Rejected Nuclear Power—and Deadly Emissions Spiked


Finish materials from last class. You are not expected to become climate science experts. My goal with the science introduction is to make you familiar with the concepts and jargon and give you a framework to understand the legal and policy issues in the cases dealing with GHG regulations and with the treaties on GHG mitigation.

Day 4 – January 23


‘Get Your Mops & Buckets Ready!’ — Trump’s Infuriating Answer To Rising Seas

We will see that this may be the right answer in many places.

Ending Snowball Earth the Hard Way(Research Article – Precise radiometric age establishes Yarrabubba, Western Australia, as Earth’s oldest recognized meteorite impact structure)

Reports of Huge Reductions in This Potent Greenhouse Gas Are Wrong – Emissions Are Soaring

A reminder that CO2 is not the only GHG. We will talk more about this when we look at the Montreal Protocol.


From last class – What is Ocean Acidification?

We are going to add some weather to our rock in space from last class.

Excellent weather blog

NASA | The Ocean: A Driving Force for Weather and Climate

Knowing the ocean’s twists and turns

Ocean Currents

Ocean Currents

Atlantic Meridional Overturning Circulation (AMOC)

World Meteorological Organization Climate Definitions

National Climate Assessment – Extreme Weather

Then we are going to learn about the IPCC. This is the key international scientific organization on climate science.

Start here:

About the IPCC

Then review these short factsheets:

What is the IPCC? 

How does the IPCC select its authors? 

What literature does the IPCC assess? 

How does the IPCC review process work? 

How does the IPCC approve reports? 

How does the IPCC deal with alleged errors? 

Be prepared to discuss these in class. It is key to understand how the IPCC works to explain why its reports are credible and also why they tend to be conservative, i.e., to understate risks.

IPCC – Climate Change 2014 Synthesis Report Summary for Policymakers – Read to p. 8, SPM 2. Future Climate Changes, Risks and Impacts.

IPCC 2014 Syn Report – Graphics (subject to revision)



Day 3 – January 21


The White House Killing Green Energy & EV Tax Credits Isn’t Surprising

James Lovelock and the Gaia hypothesis


I will do a basic introduction to the seasons, climate science, and global warming. This will not be a discussion class, but I want you to ask questions as I go to make sure you understand the basics. You need to review the resources before class. They are either short WWW pages or videos.

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?

Heat capacity of water

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?

Water as a GHG

Why water really controls the temperature of the planet, but why other GHGs that set the thermostat.

What causes the seasons?

The ice age cycles

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?

Solar Variability

One more variable

What is Ocean Acidification?

This is a direct effect of CO2, separate from its effect on heat retention in the atmosphere.


ACS Climate Science Toolkit – this is a collection of excellent tutorials on climate change and global warming.



Day 2 – January 16


A staggering 1 billion animals are now estimated dead in Australia’s fires

2019 was 2nd hottest year on record for Earth say NOAA, NASA

The hottest – 2016 – was a strong el Nino year.

NEPA Revisions through Guidance

Class Information

All the assignments will be posted on this blog. Check before class for breaking news updates

Class participation counts toward the final grade.

We may do online exercises and course material.


Kahan, Dan M., Climate-Science Communication and the Measurement Problem (June 25, 2014). Advances in Pol. Psych., 36, 1-43 (2015).

Read to 3. The “normality” of climate science in Southeast Florida. p. 33. We will read this section after we have looked at sea level rise for Miami.

Slides – Climate-Science Communication and the Measurement Problem – revised.

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 minds.

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.

Examples of the Climate Debate

We are all going to die – soon

From Season 3, Episode 3 of Newsroom:

Is this so crazy? See:

It is just a liberal plot:

It might be getting warmer, but who knows why?

A thoughtful skeptic:

Evaluating science in the media

The Canadian House Hippo

Day 1 – January 14

No Class – Football hangover day