News

WBRZ: Frustrated, some BR residents who’ve never needed flood insurance, now watch as their streets flood.

How climate change could spark the next home mortgage disaster

CleanTechnica: VW Vehicle-To-Grid Is 15 Years Too Early, Except Maybe In Texas.

Vox.com: Big Meat spends millions to block climate policy — just like Big Oil.

A Geological Evaluation of the vicinity of the Mid-Barataria Sediment Diversion submitted as comments on Draft Restoration Plan and Environmental Impact Statement

Assignment

Contesting NFIP claims

Gibson v. American Bankers Insurance Co., 289 F.3d 943 (6th Cir. 2002)

DeCosta v. Allstate Ins. Co., 730 F.3d 76, 77 (1st Cir. 2013)

News

What caused the severe weather that capsized the Seacor Power lift boat?

Vox.com: Ancient New Zealand kauri trees tell a climate change story.

Climate Change Litigation: Lawyering Challenges

A fascinating discussion of the lawyering behind Mass. v. EPA.

Assignment

We will continue with our discussion of the NFIP and flood risks. Play with these sites and see what flood maps look like. Look up some addresses and see what their elevations look like.

LSU Flood Map Site

Base flood elevation viewer

Resources

Highest Existing Adjacent Grade (HEAG)

Definitions of FEMA Flood Zone Designations

News

The host parish for Mid-Barataria diversion just voted against it; here’s why

Gulf Coast Resource Coalition – Critical Information on LA’s Proposed Mid-Barataria River Diversion Project

Note – the Q & A Page has been updated with info about exam prep and sciecne.

Assignment

Flood basics

Introduction to Flood Risk

This is a series of short presentations by Bob Jacobson, an expert in flood control. Mr. Jacobson has presented this material in class when we were in the classroom. These presentations provide a simple introduction to the issues in flood risk. You should learn the basic terminology and get a sense of the uncertainty in flood risk prediction.

NFIP – Highlights From “The Cost of Climate: America’s Growing Flood Risk” – full report – Louisiana

Read the Highlights and the Louisiana section.

Understanding Flood Insurance

We are going to get into the weeds on the NFIP terms of insurance. The general public, and most lawyers, do not understand the NFIP. This leads to misunderstandings about the need for coverage and the limitations of coverage. Louisiana is a high-risk flood zone and many people have faced financial ruin because of uninsured flood losses. We are going to read the policy and the official FEMA FAQ on the NFIP. I will do brief overview of the NFIP at the beginning of class, then we will start working through the policy. If necessary, we will finish this next class. We will then read a couple of cases illustrating why suing the NFIP is not the same as suing a private insurer. We will finish up, time permitting, next week with a look at the public policy issues with the NFIP. (That discussion will not be on the exam.)

National Flood Insurance Program – Dwelling Form – Standard Flood Insurance Policy – F-122 / October 2015 – this is the actual residential flood insurance policy (Standard Flood Insurance Policy Forms – Current)

The official FEMA FAQ on the NFIP: FEMA: Answers to Questions about the National Flood Insurance Program F-084 (Dec 2020)

We will look at all of this, but read through p. 32 to Tuesday. This is the explainer for the policy.

Resources

Materials we used in class that were not posted at the time. I am only posting existing material – I have not changed the contents of the files.

Slides – Katrina Levee Breach – East NO

Slides – Flood Control – Takings

Slides – Graci-MRGO

Slides – FTCA – History – DFE

Slides (PDF) – Climate treaties discussion

Slides – NEPA Discussion

Slides -Public Nuisance & Fraud

Slides – Using Natural Cycles to Make Better Decisions about Adaptation to Climate Change: The Future of the Louisiana Coast – Part 2

Slides – IPCC – Where are we now?

Slides – Ocean Acidification

Sher v Lafayette Insurance Co – annotated

Nelson v. Americas Ins. Co., No. CV 17-850-JWD-RLB, 2019 WL 5684503 (M.D. La. Nov. 1, 2019) – annotated

UARG Study Guide – annotated

Slides – Ocean currents

Slides – Cultural Cognition

News

Law Students for Climate Accountability

Breaking news – DOJ moves to kill  Juliana v. United States

Assignment

City of New York v. BP, No. 18-cv-182, (April 1, 2021 2nd Circuit) – annotated

LA Insurance Cases

With limited exceptions, private residential insurance providers (State Farm, Farmers, Allstate, etc.) do not include flood insurance as part of their homeowner’s insurance. Residential flood insurance comes from the federal government through the National Flood Insurance Program (NFIP). While some of it is written by private insurers, they are only acting as agents for the federal program. We will look at that program next week.

These cases deal with two critical Louisiana law legal rules. The first case deals with construing the terms of an insurance policy. This comes up after every major flood and hurricane. Most people who are at risk of flooding do not buy flood insurance. When their home floods, they bring legal claims arguing that they thought that their homeowner’s policy covered flooding. The second deals with a statutory requirement that is intended to prevent insurers from basing premiums on a higher value for a house than they are willing to pay if the house is a total loss.

Sher v. Lafayette Ins. Co., 988 So.2d 186 (La. 2008)

Legal standards for construction of insurance policies. (Read only through paragraph 72. The remainder of the case is a fight over bad faith penalties.

Nelson v. Americas Ins. Co., No. CV 17-850-JWD-RLB, 2019 WL 5684503 (M.D. La. Nov. 1, 2019)

This looks at the Louisiana Valued Policy Law and how it affects claims when there is a total loss. Focus on understanding Louisiana’s Valued Policy Law and how it affects situations where there is both flood and wind/fire damage.

News

The American Jobs Plan – PDF

President’s infrastructure and green new deal plan. Read through and think about what is Green New Deal and what is Old New Deal.

India Demands Rich Nations Like The U.S. Clean Up Their Climate Mess, Signaling A Shift.

“It’s time for developed countries responsible for most of the carbon in the air to not just cut emissions but remove them, India’s energy minister said.”

This is going to complicate Paris.

Assignment (and News)

City of New York v. BP, No. 18-cv-182, (April 1, 2021 2nd Circuit)

NYC’s Complaint

While we were going to start on the National Flood Insurance Program on Tuesday, this case was just released and President Biden released his American Jobs Plan, which includes some green new deal elements. Read the case carefully and be prepared to discuss it and participate in Poll Everywhere. It is a good review of state law climate cases. The 2nd Circuit has dismissed New York City’s state law nuisance claims against the oil industry based on federal preemption. This is an important case, and unless it is overruled en banc, it sets up a circuit split with the cases we have seen. (Given that all three judges on the panel support the case, I think en banc review is unlikely.) If there is a circuit split, it is extremely likely that the Supreme Court will accept cert.

News

The Mississippi River is in its usual spring flood: Corps River Gauges for the Mississippi

The Morganza Spillway, which is part of the Old River Control Structure, was built to allow the river to be diverted into the Atchafalaya basin during extreme floods. There is an old river ridge that bounds the basin leading into the spillway called the Potato Ridge.

This ridge protects farmland upstream of the spillway during normal river levels. As the river floods, the Potato Ridge is meant to break to allow the water to get to the spillway. Farmers build up a levee on the ridge to extend the protection of the farmland, but the Corps limits this because of the role of Ridge in guiding water into the spillway. (For more information, see: Heath, Ronald E., et al. Morganza Control Structure Forebay: Numerical Hydraulic Model Investigation. ENGINEER RESEARCH AND DEVELOPMENT CENTER VICKSBURG MS VICKSBURG United States, 2018.)

The Potato Ridge levee has just breached, and Mr. Bergeron has provided us with pictures:

Movie of Potato Ridge Levee Breach

Assignment

One of the key issues in the fight over whether the federal government owes local communities flood protection is whether a failure to provide adequate flood protection can be a taking. This theory arose as it became clear that the flood control decisions could not be attacked as torts, either because the FTCA DFE cut them off, or because FCA 702 immunity cut them off. As a constitutional right, Congress cannot cut off takings liability, so cases based on takings would not be subject to the DFE or 702. Again, the key case comes out of Louisiana and Hurricane Katrina:

St. Bernard Par. Gov’t v. United States, 887 F.3d 1354 (Fed. Cir. 2018)

We are going to read this case closely, rather than going through the cases leading up to it. I have highlighted the key points in the opinion.

The most recent major flooding event was Hurricane Harvey. This case arose from claims by downstream property owners who claimed that the Corps’ failure to protect them from flooding was a taking:

In re Downstream Addicks, No. 17-9002, 2020 WL 808686 (Fed. Cl. Feb. 18, 2020)

We are only going to read from 2. Federal Law, p. 15, to the end, which is the analysis of the federal law claims. Interestingly, the CtCl judge does not cite either Ark Game and Fish or St Bernard, but appears to follow St. Bernard. The Upstream Cases did find liability but on a very conventional analysis. The Corps had built earthen dams to detain floodwaters. It predicted the design capacity of the dam based on the safe level of water it could hold and bought flood easements on that land. This was smaller than the theoretical capacity of the dams because you do not want to completely fill an earthen dam. During Harvey, the water rose so fast and high that the Corps did not get the floodways open fast enough to keep the dam from filling beyond design capacity. The court found that it should have bought out all of the land and that the homeowners in the flooded area had suffered a taking. I think this is wrong, it should have been a tort claim under the FTCA, but it is not a crazy ruling. It is still in process in the Court of Claims and may yet be appealed to the Fed. Cir.

News

The fight against fake-paper factories that churn out sham science

This is a huge problem for peer-reviewed science.

Opinion | China Doesn’t Respect Us Anymore — for Good Reason – The New York Times

This has implications for the US’s ability to meaningfully address climate change.

‘Prolonged and Widespread Drought’ Predicted for Much of U.S. in New NOAA Report – (The actual report)

NBC News: Biden’s over-under for Paris climate goal: 50 percent.

Assignment

What did we know before Katrina?

Start with this graphic, showing what Hurricane Georges could have done to New Orleans a decade earlier. It has a great representation of the elevation of the city running from the highest point at the river to the lowest near the lake:

Going Under

This is an amazing series of articles analyzing the risk of a storm such as Hurricane Katrina, written 3 years before Katrina hit New Orleans:

Washing Away: Worst-case scenarios if a hurricane hits Louisiana (2002)

Scan them to get a sense of the risk that was already known but that the city and the state failed to act on in preparing for the storm and evacuating the city. Sadly, the newspaper WWW site is not working so we are looking at them on the Wayback Machine. This is some of the best reporting done at the late Times-Picayune. The current Advocate takes a much less critical look at the coast.

Sorting out FCA immunity:

Central Green Co. v. United States, 531 U.S. 425 (2001)

This is the most recent Supreme Court case on what FCA immunity means. It sorts out flood control and floodwaters.

In re Katrina Canal Breaches Consol. Lit., 533 F.Supp.2d 615 (E.D.La. 2008)

Read p. 28-35. This is the analysis of the application of the FCA that will carry through the Katrina cases. In this opinion, the court is looking at the 17th Street floodwall failure. Concentrate on how it attempts to distinguish Central Green. Does it convince you? Since this was a failed flood control structure, the court found that FCA immunity applied. In cases arising from New Orleans east, we will see how the court uses this analysis to avoid FCA immunity, despite the floodwaters having to get past a federal levee system.

The Major Levee Breach Case

In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) Final opinion and appendix.

This is long and complicated. I do not expect you to read this in detail, and there is no specific law to learn from it. (You can scan the appendix to see the exhibits.) We are looking at it for the story that the plaintiffs told the court and why the court bought that story. The opinion is based on the plaintiff’s lawyer’s record and experts, the government only put on a perfunctory technical and scientific defense because it believed, correctly, that it was entitled to immunity. The opinion is full of junk science. Unfortunately, many lawyers and most of the public believe that since the judge ruled for the plaintiffs, that story is true. The government just won on a technicality.

The dilemma of this case is deciding how much time to spend working through the absurd legal analysis of the district court. As a lawyering matter, it is a useful exercise to see a court systematically manipulate precedent to force a result. I do not want you to spend untold hours sorting this. Scan the case, using this study guide, to see what the judge is doing and I will review this in class: Levee Breach Liability District Court – Study Guide – PDF

We want to think about the court’s rationale to avoid the FCA immunity. What you should remember from our discussion of the delta cycle is the continuing subsidence of New Orleans East. Remember Fort Proctor? Since New Orleans east is now mostly below sea level, and wetlands area outside the levees are disappearing from subsidence combined with sea-level rise, the risk of flooding has increased since 1965. We also want to think about how systematically the court ignored the precedent on the DFE. As you will figure out, the key DFE case for government decisions that knowingly endanger people is Allen v. United States, 816 F.2d 1417 (10th Cir. 1987). It is not even cited.

If you want a deep dive, and this is not required or necessary for class, read my article on the Katrina litigation: The Hurricane Katrina Litigation Against the Corps of Engineers: Is Denial of Geology and Climate Change the Way to Save New Orleans?

News

The EPA Climate WWW page is back on online!!! 

Assignment

After the Great Mississippi Flood of 1927, Congress passed the Flood Control Act of 1928 (FCA). Flood Control Acts are periodic bills that appropriate money for flood control purposes. The 1928 Act focuses on building up the flood control structures on the Mississippi in response to the 1927 flood. It is important for our purposes because it contains this immunity provision:

No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place…

Since Congress cannot block takings claims, this can only refer to tort claims. But in 1928, you cannot sue the federal government for tort claims. Its meaning becomes an issue after the FTCA is passed in 1946. It is first litigated in 1954:

National Mfg. Co. v. United States. Great Western Paint Mfg. Corp., 210 F.2d 263 (8th Cir. 1954)

We are reading this case for the law and for the policy. FCA immunity is core to understanding the extent of the federal government’s duty – if any – to protect communities from flooding. I have prepared an introduction to the Mississippi River flood control system and the FCA as discussed in National Mfg. This will give you the background on the FCA and the case, without using a lot of class time, so we can focus on the Hurricane Betsy case in class:

Video: Introduction to the Flood Control Act of 1928 Immunity and the Federal Tort Claims Act

Narrated PowerPoint: Introduction to the Flood Control Act of 1928 Immunity and the Federal Tort Claims Act

The next important flood control case arose from Hurricane Betsy, which hit New Orleans in 1965. These are background materials on Hurricane Betsy. Many people do not appreciate that it flooded New Orleans as completely as Hurricane Katrina. Many fewer people died, primarily because the City was better prepared in 1965 than it was in 2005. Some of that was due to the levee effect – the false sense of security that arose from the levees that were built after Hurricane Betsy. Review these to get a sense of the storm.

The track of Hurricane Betsy – NOAA

Hurricane Betsy: Preliminary Report, with Advisories and Bulletins Issued, September 15th, 1965

DA Godeau & WC Conner, Storm surge over the Mississippi River delta accompanying Hurricane Betsy, 1965, 96 Monthly Weather Review 118–124 (1968).

Remembering Betsy: WVUE-TV 09/1990 

Watch this outside of class – pay special attention to the levee comments at about 12:30 and the ending comments at 27.

In the Graci cases, plaintiffs sued the Corps under the FTCA, alleging that the Mississippi River Gulf Outlet caused New Orleans to flood. We are reading the Graci cases because of their significance at the time, and because the plaintiffs in the Katrina cases filed almost exactly the same claims in the same court.

Graci v. United States, 456 F.2d 20 (5th Cir. 1971) 

The Government answered that it was immune from suit under the FCA. The district court held that the FCA did not apply to the MRGO because it was not a flood control project. We are going to read the 5th Circuit opinion upholding that analysis. It reviews the cases on the FCA immunity up to that point, and it puts forward its own test for what is necessary to trigger FCA immunity.

On remand – Graci v. U.S., 435 F.Supp. 189 (E.D.La. 1977)

We are reading this case to see how the court analyses the plaintiffs’ negligence claims and see if the plaintiffs in the Katrina cases took the right lessons from this case.

Resources – MRGO

History

Albert E Cowdrey, Land’s End, a History of the New Orleans District US Army Corps of Engineers, and Its Lifelong Battle With the Lower Mississippi and Other Rivers Wending Their Way To the Sea. US Army Corps of Engineers. (1977) (large file)

LM Alperin, History of the Gulf Intracoastal Waterway. US Army Corps of Engineers, Study NWS-83-9 (1983)

These both contain historical information on MRGO and where it fit into the larger navigation system.

Charles L Bretschneider & J Ian Collins, Storm Surge Effects of the Mississippi River-Gulf Outlet: Study A (National Engineering Science Company) (1966)

Showing that the MRGO did not increase flooding with Hurricane Betsy

United States. (1968). Mississippi River-Gulf outlet, Michoud Canal, Louisiana: Letter from the Secretary of the Army transmitting a letter from the Chief of Engineers, Department of the Army, dated June 3, 1968, submitting a report … on a review of the report Mississippi River-Gulf outlet, Michoud Canal, Louisiana, requested by a resolution of the Committee on Public Works, United States Senate, adopted June 9, 1964. Washington, D.C: U.S. G.P.O.

Report on the widening of MRGO after Hurricane Betsy in 1965.

News

TBA

Assignment

The federal government is the major player in the control of coastal and riverine flooding. When people who think they are safe because of federal flood control projects are flooded, they want to sue the government. Archetypical examples are the tort and takings claims filed against the Army Corps of Engineers after Hurricane Katrina flooded New Orleans. As climate change increases flooding risk, every high-risk flood area looks to the federal government for protection. Does the federal government have a duty to protect against flooding? We need to understand the law of suing the federal government to answer that question.

Damage claims against the federal government

This a brief introduction to damages claims against the federal government. (Administrative law claims are generally requests for injunctions.) We are going to look at tort claims and taking claims related to flooding. This handout also includes a discussion of the exceptions to the tort claims act for intentional torts. We will not cover this, but you may find it a useful resource.

28 USC Ch. 171: TORT CLAIMS PROCEDURE

This is the statute.

Form 95 – CLAIM FOR DAMAGE, INJURY, OR DEATH

This is the form for filing an FTCA claim. Review it so you understand the required information.

Federal Tort Claims Act Reader

These are short, edited versions of the key cases setting out the construction of discretionary function exception in the FTCA. This is the key to understanding FTCA jurisprudence in flood and other public works cases.

Resource Documents

United States Court of Federal Claims Brochure

News

Breaking news – Red states, including Louisiana, file amicus briefs in California climate cases, arguing that the cases belong in federal court.

Assignment

We are going to talk about the Montreal Protocol and the Paris Agreement together. Montreal showed the world what worked. What did Paris learn from Montreal? I do not want to fill the class time lecturing so I have included video reviews rather than extensive reading assignments. You need to come to class with a basic understanding of the requirements and incentives of the two treaties. Be prepared to discuss the pros and cons of Paris, and whether joining it affects US law. Paris is an executive agreement that does not need ratification by the senate. If you want to review the legal effects of treaties and executive agreements, there is a presentation in the Resources.

The Montreal Protocol

We are going first look at the Montreal Protocol, which is the most successful environmental law treaty. The 2016 Kigali Amendment made it explicitly a climate change treaty.

Ozone Basics – Panopto | Ozone Basics – YouTube | Slides – CFCs and the Ozone Hole

A short video I recorded in class last year on the basic science of ozone. As I mention in the video, there will not be any physical chemistry on the exam.

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

A 5-minute overview of the lead-up to and development of the Montreal Protocol.

Summary – Montreal Protocol on Substances that Deplete the Ozone Layer

UN – About the Montreal Protocol

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 provides money to the developing world to facilitate the transition to safer chemicals.

The Kyoto Protocol, which was also structured as a treaty, had the same structural plan in that it also had differential obligations for developing nations. 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 a treaty with different standards for the developing world. Yet the US Senate Ratified the Montreal Protocol, roughly 10 years earlier.

Why the different result? 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.

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 phased out. 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 Biden administration is expected to accept the Kigali Amendment.

Montreal Protocol Review – Video | Montreal Protocol Review – Narrated PowerPoint

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

There are four problems with the Montreal Protocol.

The disposal of refrigerants already in the refrigerators and air conditioners: Long Phased-Out Refrigeration and Insulation Chemicals Still Widely in Use and Warming the Climate

The black market in banned refrigerants to keep old equipment running: Europe’s black gas market fueling climate change

The illegal manufacture of banned refrigerants and associated refrigerators and air conditioners because they are cheaper to make. This is partially driven by US policies that block the sale of new products made by China.

Even if the treaty works, the growing demand for air conditioning will be a major demand for electricity.: The air conditioning trap: how cold air is heating the world

The Paris Agreement

The Paris Agreement Summary

Again, the key question is how does the agreement – it is not a treaty – deal with the developing world vs. developed world problem? Be prepared to talk about this in class.

Paris Climate Agreement Review – Video | Paris Climate Agreement Review – Narrated PowerPoint

Resources

Review of Treaties and Executive Agreements – Panopto| Review of Treaties and Executive Agreements – YouTube | Review of Treaties and Executive Agreements – Slides

Class Rules Update – cameras

Class rules require that your camera be turned on. For the rest of the course, I will mark you absent if your camera is not on and you have signed in as present. If you have special circumstances, email me and I will not mark you absent.

News

Read this: Big Tobacco had to pay $206B. Is Big Oil next?

This came out this morning. It adds some more information to our discussion in class yesterday.

Assignment

NEPA – Parsing the Statute  – Video –  Narrated PowerPoints (they are the same, just different formats)

A brief introduction to the NEPA statute.

Video introduction to the use of NEPA (Watch the 1st 40 minutes on NEPA)

Sierra Club v. Federal Energy Regulatory Commission, 867 F.3d 1357 (2017)

Take a look at this Draft EIS, which has just been released. It is way too long to read, but you might want to look at the Executive Summar.

Mid-Barataria Sediment Diversion (MBSD) DRAFT Environmental Impact Statement Released for Public Review and Comment

Easier access to the MBSD document.

Resources

The National Environmental Policy Act of 1969, as amended

Council on Environmental Quality (US). Environmental Quality: The First Annual Report of the Council on Environmental Quality Together with the President’s Message to Congress. US Government Printing Office, 1970.

News

Man, let’s go!’: Environmental groups cheer release of river diversion report in Louisiana

Denial of Petitions to Establish National Ambient Air Quality Standards for Greenhouse Gases, to Regulate Greenhouse Gases under Clean Air Act Section 115, and to Regulate Greenhouse Gases as Hazardous Air Pollutants (January 2021)

This was released on the last day of the Trump Administration

‘Missing ice problem’ finally solved

First state AG lawsuit to enjoin the shift back to the Obama administration’s social cost of carbon

Benjamin Franta (2021): Early oil industry disinformation on global warming, Environmental Politics, DOI: 10.1080/09644016.2020.1863703 – podcast discussing the article

The podcast was just released, bringing this new article to my attention. This part of the Drilled Podcast series, which is a history of climate disinformation by the oil industry.

Assignment

There are two major types of state law climate cases. One is based on nuisance claims from damage caused by climate change due to burning fossil fuels. We are going to read a recent appeals case that discusses whether these state law theories implication federal law and must be removed to federal court. The underlying issue is that if they do implicate federal law, then they are more likely to be preempted by American Electric Power Company.

City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020)

The type are cases that are based on fraud through climate change denial. We are going to read an article on the history of climate change denial by the oil industry and the parallels to the tobacco industry’s disinformation campaign on the risks of smoking:

How the oil industry made us doubt climate change

We are then going to read the factual background in the Massachusetts climate case. In particular, the Amended Complaint, as filed on  June 5, 2020, through page 57.

Amended Complaint, as filed on  June 5, 2020

Think about and be prepared to discuss whether these practices by Exxon should be considered fraud or whether, as Exxon defends, they are protected 1st amendment actions. You should read this to brush up on your 1st Amendment jurisprudence on false speech:

Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)

News

The Verge: Watch 2020’s hurricane season unfold in a mesmerizing four-minute timelapse.

In the Atlantic Ocean, Subtle Shifts Hint at Dramatic Dangers

There is a little bit of the sky is falling in these reports. The issue is real, the timeframe and probability are very uncertain. There are changes going on in the Gulf Stream.

Assignment

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., 134 S. Ct. 2427, 189 L. Ed. 2d 372 (2014) – Court limits the expansion of GHG regs under NAAQS.

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. It is a hard case that depends on getting into the weeds in the CAA. I have annotated the case to help you think about it and to facilitate our class discussion.

UARG Study Guide – reformated and revised

Slides – Clean Air Act Glossary (I will use these in class as an intro to the case.)

Resources

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

Introduction to the State Implementation Plan Process

News

Past Climate Change Law Exams

NOAA considers earlier official start date for Atlantic hurricane season

Climatologist Michael E Mann: ‘Good people fall victim to doomism. I do too sometimes’

Well worth reading.

Executive Order: A Return to Science: Evidence-Based Estimates of the Benefits of Reducing Climate Pollution (FEBRUARY 26, 2021)

Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive Order 13990 (February 2021)

The Biden administration moves back to the social cost of carbon set by the Obama administration. See highlighted text on p. 3.

Assignment

The preemption cases

For the first part of the class, we are going to take a quick look at two cases applying the preemption from the AEPC case. Comer is interesting because it is local and because of the recusal dance by the 5th Circuit judges, many of whom had homes damaged by Katrina and thus had conflicts of interest. Kivalina is the national symbol for the loss of arctic villages, as well as coastal villages. This about whether moving a few miles inland is going to solve their problem.

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

Plaintiffs sued fossil fuel companies for making Hurricane Katrina worse. 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)

Background on Kivalina and the permafrost problem

Location

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

The plague problem

The case

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.

The Juliana Case

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.

Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)

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.

News

Breaking news: Texas Electric Bills Were $28 Billion Higher Under Deregulation

This is a Wall Street Journal article, not something from a pinko-climate news site. Seems that the average consumer in Texas pays substantially more than in similar states with traditional utility management.

FT – Power market credit crisis looms as Texas bills come due

Looks like the power generators get guaranteed payment. If the intermediaries fail to pay, it gets spread across the rate base. This structure is also used in the Louisiana wind pool insurance program, which provides subsidized wind coverage for homes subject to hurricanes. (LA has been working to shrink this pool, but, like flood insurance, requiring people to pay actuarily sound insurance rates would dramatically reduce property values.)

NPR: Natural Gas Battles Local Climate Efforts

Assignment

Endangerment finding from last class.

Social Cost of Carbon 101

The social cost of carbon is an estimate of the cost to society of each ton of CO2 put in the atmosphere. It is a key component in doing a cost-benefit analysis of GHG regulations. It is easy to estimate the cost of regulations, but hard to estimate the economic benefits.

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

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

Resources

Slides – Mass v EPA – Chevron

News

How much carbon can Louisiana’s wetlands hold? New study aims to find out.

Another coastal restoration myth is that money can be raised by selling what are called blue carbon credits. Blue carbon is carbon captured in wetlands. The problem with wetlands carbon is that recent carbon in coastal wetlands – carbon that is not in buried peat – goes to CO2 and CH4 as soon as the wetland is drowned. So the answer is that over the next 50 years Louisiana coastal wetlands will be a huge SOURCE of GHGs as wetlands are lost.

The Texas Power Grid Story

Is climate change increasing extreme winter weather events?

Argument that melting arctic ice increases extreme winter weather events – the polar vortex

Blackport, R., Screen, J.A. Weakened evidence for mid-latitude impacts of Arctic warming. Nat. Clim. Chang. 10, 1065–1066 (2020). https://doi.org/10.1038/s41558-020-00954-y

Analysis of the Texas grid failure.

How The Crisis In Texas Happened – podcast

How Did Texas Electricity Grid Fail Residents So Catastrophically? An Expert Explains

It is the core regulatory dilemma in electric power delivery. Reliability costs money. What is the right balance between affordable power and reliable power?

In Louisiana, we see it in the failure to trim trees, maintain powerlines, and install wind-resistant power transmission lines. Whenever there is stress on the lines from wind or ice, trees and wind take down lines. Trimming trees costs money and political capital – people hate having their trees cut up to clear power lines.

In Texas, the system was not designed for a rare winter event. That would have raised power costs in a system that highly weighted toward cheap power rather than reliable power.

In California, PG&E was criticized and sued for not taking sufficient precautions to prevent forest and brush fires. But it is unclear whether regulators would have approved the price increases in power charges for rural areas that would have been necessary to pay for increased safety. Environmentalists would also have objected to the environmental damage that would accompany clearing trees and/or burying powerlines. The lack of precautions, combined with not requiring fire resistance construction, were subsidies to rural development.

Assignment

Finish Mass. v. EPA.

This is where we get into the CCA 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.

Technical Support Document for the Findings (PDF)

This document provides the scientific background for the Endangerment Finding. Read the Executive Summary, pp. ES1-7.

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.

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.

Resources

Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Section 202(a) of the Clean Air Act

This is the EPA site for the Endangerment Finding.

Online Materials in lieu of the Zoom class, which was canceled.

Video introduction and discussion of the news items posted for class on Thursday

Previously assigned materials: Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – Study guide

The case began when the petitioners submitted 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:

PETITION FOR RULEMAKING AND COLLATERAL RELIEF SEEKING THE REGULATION OF GREENHOUSE GAS EMISSIONS FROM NEW MOTOR VEHICLES UNDER § 202 OF THE CLEAN AIR ACT

Scan through this to see the format. 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.

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:

Massachusetts v. E.P.A., 415 F.3d 50 (D.C. Cir. 2005)

Read the highlighted text starting at p. 9. The court reasoned that if it found that the EPA action was proper, it would not have to resolve the standing issue.

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 judges 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 oppose standing.

Recorded presentations on the standing issues in Mass. v. EPA.

(The video is saved from the narrated PowerPoint slides and is exactly the same as playing the slide show. Choose which format works better for you. You can view the PowerPoint deck slide by slide for easier note-taking and review.)

Video – Massachusetts v. E.P.A.: Standing – Majority Opinion

PowerPoint – Massachusetts v. E.P.A.: Standing – Majority Opinion

Video – Massachusetts v. E.P.A.: Standing – The Dissent

PowerPoint – Massachusetts v. E.P.A.: Standing – The Dissent

News

We didn’t prepare for this’: 1.4M in Houston left without power on coldest day since 1989

We are going to talk about the Texas power market and climate next Tuesday when we have better information about what happened.

ScienceAlert: The Colossal Weight of Cities Is Making Them Sink, Even as Sea Levels Are Rising

Another example of the crust bending as it is loaded. With buildings this time, rather than sediment.

Schmidt CW. Delta Subsidence: An Imminent Threat to Coastal Populations. Environ Health Perspect. 2015;123(8):A204-A209. doi:10.1289/ehp.123-A204

This is a review article on the impact of subsidence on several major river deltas, in areas where the affected population is much larger than in Louisiana.

Life Raft: What Would It Take For Louisiana To Go Carbon Neutral By 2050?

Bill Gates on the climate crisis: ‘I can’t deny being a rich guy with an opinion’

An example of the problems we face in trying to get news media and the public to look honestly at the effect of sea-level rise on the coast.

Assignment

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

Domestic regulation of GHGs raises two key issues. First, does the government have the authority to regulate GHGs, and second, who has standing to challenge the government for failing to regulate GHGs. (Challenging regulations is easy, anyone affected by the regulation has standing. Challenging the failure to regulate is much harder because the court is hostile to citizens standing in environmental cases.)

Mass v. EPA addresses both of these issues. It is the case that begins the federal regulatory saga for GHGs in the United States. We are going to read this case closely. Start early, it is relatively long. You have probably read some of it in other classes. Standing is very critical because with Kennedy and Ginsburg gone, it is likely that there are five or six justices on the current court who would side with the dissent in this case. That could undermine all citizen standing climate cases against the government and litigation against private companies for climate injuries. Follow the study guide as you read the case to better identify the issues.

Resources

Louisiana’s Disappearing Coast

News

Equitable Transitions: Visions for a Sustainable and Just Future

This is a free conference on environmental justice and climate change response put on by the University of Florida Levin School of Law. It is on Friday and Saturday. You need to register to get the Zoom link.

West Virginia Has Everyone’s Attention. What Does It Really Need?

This ties in with the climate justice them3, as well as broadening political support for climate change mitigation and adaptation.

NOLA.com: Bob Marshall: Biden hasn’t declared war on oil, the world has – and Louisiana will be the winner.

Assignment

Finish our presentation on Louisiana with a class discussion on what this means for LA. How do we think about the range of uncertainty on the level and timing of sea-level rise? What will be the impact of shrinking the oil and gas industry. At this point, there is little onshore production, and offshore has been highly automated. The result is that drilling, production, and royalties are now a small part of the Louisiana economy. Petrochemicals and refining are much bigger parts of the economy and these would also be reduced as the use of fossil fuels is cut back.

How should we think about retreat? Should the government incentivize inland construction?

Does online work provide a path to reducing the brain drain in the state?

Getting access to firewalled news sites

New York Times

LSU Guide

If LSU has a subscription, you can look up the access method here. Some require you to register, some require a proxy if you are off-campus.

Newspapers, such as the Financial Times

News

What a New Executive Order Means for Curbing Methane Emissions

Texas Responds: CNN: An invisible, odorless gas is pitting Texas against the Biden administration.

Global Citizen: Iceland Is Sucking Carbon Dioxide From the Air and Turning It Into Rock.

OilPrice.com: Fossil Fuels Aren’t Going Anywhere.

An example of Zero Emission affordable housing

Norway Responds.

Assignment

Continue our discussion of the Mississippi Delta. Read:

R. Eugene Turner, Doubt and the Values of an Ignorance-Based World View for Restoration: Coastal Louisiana Wetlands. Estuaries and Coasts (2009) 32:1054–1068.

Prof. Turner is a Boyd Professor at LSU and one of the worlds leading wetland scientists. He has spent his professional life studying Louisiana’s coastal wetlands.  (He is one of my colleagues in our climate change program.) This paper is a more philosophical look at decision-making in the face of uncertainty and the role of science. It focuses on the coastal restoration problem. What he terms the knowledge-based approach might be better termed the engineering approach: build today based on what you know and what you have done in the past, even if you do not understand the system. His ignorance-based approach means that you look at the system as a scientist and focus on what you do not know, and how that might affect your results. The classic criticism of this approach is that we have a problem and we have to act now, we cannot wait for more information. This usually leads to catastrophic failures in natural systems. It also does not work very well in major engineering projects, leading to the well-known megaproject failure problem, i.e., that huge engineering projects are prone to massive cost overruns, delays, and sometimes complete failure. If you are interested in the megaproject question, this is an introduction:

Flyvbjerg, Bent. “Introduction: The iron law of megaproject management.” Bent Flyvbjerg (2017): 1-18. (not assigned reading)

Resources

Mississippi Delta Subsidence in Action – Fort Proctor

Slides – Using Natural Cycles to Make Better Decisions about Adaptation to Climate Change: The Future of the Louisiana Coast – Part 1

A more scholarly take on the GM commercial: https://heated.world/p/lets-talk-about-that-super-bowl-ad

News

Sandwich homes collapse after nor’easter brings heavy rain, wind to the coast

This is on the Ma. coast after this week’s storm. The news video starts after the commercial. Right at the beginning, there is a picture of a house falling off of a sand cliff. That house is sitting on an artificial dune on an artificial beach. 100 years ago, that spot was a long way from the beach, behind the natural dune line. The beach has probably retreated inland with sea-level rise and local efforts to preserve the beach – which almost always hasten the loss of sand. Sand has been pumped from the bay to create a false beach and dune. A key clue is the steep slope to the ocean – a natural beach has a more gradual slope. The problem with putting a beach and dune where one has washed away is that it is too high for the local water conditions. This means that the ocean is going to seek its proper level with the beach, destroying it fairly quickly. That can be overnight when there is a storm.

The Terrifying Warning Lurking in the Earth’s Ancient Rock Record

Great look back at the climate over the past few million years. It is a wonderful read.

Assignment

We will finish the materials from last class by taking a look at the headline findings from the 1.5-degree report. We will then look at Louisiana and the Mississippi Delta. We are focusing on this area because of its special interest for us, but also because many of the world’s great cities are on deltas. Deltas are shaped by their local geology, but they all cycle in the same way. What we learn about the Mississippi Delta also applies, with modifications, to every delta in the world.

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

Resources

News

Request to Remand – Order

Motion from the EPA to remand the Secret Science rule to the agency and the court’s order remanding, based on the finding that it was a substantive rule that could not be promulgated under housekeeping provisions.

Assignment

Read the summary for policymakers from the latest report from the IPCC on general climate change:

IPCC, 2018: Summary for Policymakers. In: Global warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [V. Masson-Delmotte, P. Zhai, H. O. Pörtner, D. Roberts, J. Skea, P. R. Shukla, A. Pirani, et. al. World Meteorological Organization, Geneva, Switzerland, 32 pp.

News

Breaking news – Court delays secret science rule

Great weather display

Biden, Emphasizing Job Creation, Signs Sweeping Actions to Fight Climate Change

Executive Order on Tackling the Climate Crisis at Home and Abroad – Annotated – supporting fact sheet

This is the order – read it so we can talk about it in class.

White House briefing on the climate order

Assignment

Continue our review of the IPCC projections for future climate change.

Resources

Sea Level Rise Viewer

News

U.S. rejoins fight against climate change at high level summit

U.S. Fed taps official to lead new climate change team

A million young people urge governments to prioritise climate crisis

Electrek.co: President Biden will make entire 645k federal vehicle fleet electric.

Crisostomo, Noel, Wendell Krell, Jeffrey Lu, and Raja Ramesh. January 2021. Assembly Bill 2127 Electric Vehicle Charging Infrastructure Assessment: Analyzing Charging Needs to Support Zero-Emission Vehicles in 2030. California Energy Commission. Publication Number: CEC-600-2021-001.

All EVs by 2035? Report shows roadblocks.

2020 was Earth’s 2nd-hottest year, just behind 2016

Slater, Thomas, et al. “Earth’s ice imbalance.” The Cryosphere Discussions (2020): 1-21. – press release

“The ice sheets are now following the worst-case climate warming scenarios.” Read the press release.

La Niña Roars, Unleashing Fire, Drought and Floods Worldwide

This was a La Nina year, which should have lower the global temperature. La Nina also drives extreme weather, which we certainly saw in Louisiana

Assignment

Introduction to Weather

Watch these short videos on the basics of weather:

IPCC – Climate Change 2014 Synthesis Report Summary for Policymakers – Read to SPM 2.3 Future risks and impacts caused by a changing climate, p. 13

News

Breaking news – DCC throws out Trump GHG Rule!

The question in this case is whether the Environmental Protection Agency (EPA) acted lawfully in adopting the 2019 Affordable Clean Energy Rule (ACE Rule), 84 Fed. Reg. 32,520 (July 8, 2019), as a means of regulating power plants’ emissions of greenhouse gases. It did not. Although the EPA has the legal authority to adopt rules regulating those emissions, the central operative terms of the ACE Rule and the repeal of its predecessor rule, the Clean Power Plan, 80 Fed. Reg. 64,662 (Oct. 23, 2015), hinged on a fundamental misconstruction of Section 7411(d) of the Clean Air Act. In addition, the ACE Rule’s amendment of the regulatory framework to slow the process for reduction of emissions is arbitrary and capricious. For those reasons, the ACE Rule is vacated, and the record is remanded to the EPA for further proceedings consistent with this opinion.

How Biden hopes to use executive actions to address America’s “compounding crises”

Inauguration Day

What can President-Elect Biden Do on Day 1? We will talk about executive orders versus APA rules.

Assignment

We are going to continue our tour of basic climate science. We learned how to build a climate on a rock in space last class. This is a very simple introduction to the effects of solar radiation on the planet. While CO2 from fossil fuel is a major contributor to this warming effect, CO2 is not the only GHG, and burning fossil fuels is not the only factor that controls the amount of CO2 in the atmosphere.

There is a separate effect of CO2 on the pH (acidity) of the ocean. This has a direct effect – independent of temperature changes – on many forms of sea life, especially anything with shells such as oysters.

What is Ocean Acidification?

Read through this article from last class. Do not worry if you do not understand the chemistry – when I was a grad student, I tutored medical students on acid-base chemistry and they did not understand it either.

EPA – Ocean Acidification

This has a good video introduction to the carbon cycle and additional information on acidification.

Climate versus Weather

World Meteorological Organization Climate Definitions

National Climate Assessment – Extreme Weather

One of the problems in teaching the public about climate change is that we only see the weather. Climate is a long term average of weather. These two short articles present the basic definitions for climate, weather, and extreme weather.

The IPCC

Before we get into climate models and analysis of climate change, we need to think about this key question – who do we trust? The IPCC was set up through the UN, with the support of the United States, to be an impartial program to evaluate climate science. We are going to look at how it is structured to increase trust in its results.

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? 

This about how well does this organization succeed in making the IPCC impartial?

There is also a United State Climate Assessment, mandated by Congress:

US Climate Change Research Program

News

Check back.

Assignment

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. This is basic climate nerd stuff so we all learn the language.

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.

Resources

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

News

China Breaks Decades of Climate Gridlock

Assignment

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? This work was done in 2012-2014. The Trump presidency, with its cries of fake news and denial of science in most areas of policymaking, makes it even more critical to examine what shapes people’s attitudes on what should be factual questions.

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. This research explores the critical distinction between what a person knows and what a person believes. 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.

This class will be held through Zoom on TTH, 1:50-3:20 pm CST. The first day of class is 12 January 2021. The course materials and assignments will be posted on this site. There are no materials to be purchased. We will use public domain materials primarily, including primary documents such as IPCC reports. Some materials will be posted on Moodle to preserve copyright.

Under the new law school attendance policy, you will need to log into Moodle during the first 15 minutes of class and record your attendance. If you are delayed, you will be able to log in as late. Occasional late attendance will not count against you, but a consistent pattern of late attendance will be a problem. Instructions for marking attendance are here: Moodle: How to use the Attendance activity (Students)

You should leave your audio muted except when you are called on. You should leave your video on, with allowances for brief personal breaks due to local disruptions at your end. We will use Poll Everywhere for polling during the class sessions. You respond through a URL and you do not need to buy a license. The in-class polls will not be graded, but participation will count toward class participation points. Class participation can raise or lower your grade by up to 0.3 points.