This class will be held through Zoom on TTH, 1:50-3:20 pm CST. The first day of class is 11 January 2021 and we will continue on Zoom for the first 3 weeks of the course, subject to the LSU COVID protocols. 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 10 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.
This is a blockbuster decision. We are going to read it next class to conclude our discussion of NEPA. Start reading it over the weekend, it is fairly complicated.
We will finish our discussion from last class. We will then begin a series of classes looking at the main legal tools for mitigating GHGs in the US under the existing statutory framework. This builds the oral arguments in West Virginia v. EPA on Feb. 28. We will then look at global warming as an international problem. We will look at governance issues such as geoengineering in which one country’s actions to mitigate warming may harm others. We will also look at the international treaty and agreement structure from the Montreal Protocol to the Paris Agreement.
There are two major federal regulatory paths in dealing with climate change. One, which we will talk about next, is the direct regulation of GHGs under the Clean Air Act (CAA). The second is through the National Environmental Policy Act (NEPA). NEPA is the first of the modern environmental laws. It is not a direct regulatory law. Instead, NEPA requires covered projects to prepare a detailed analysis of the environmental impacts of a proposed project. The objective of NEPA is to assure that the public and government officials make decisions based on complete and accurate information in the form of an Environmental Impact Statement (EIS). NEPA has a strong citizen lawsuit provision that allows interested parties who meet the standing requirements to challenge the EIS if they can show that the EIS is inaccurate or incomplete. The court can order that the EIS be amended, including doing new studies of environmental impacts if necessary. Once the EIS meets the requirements set in the NEPA regulations and case precedent, there is no right to challenge the decision to build the project. NEPA is the major tool that environmental groups use to try to stop environmentally dangerous projects. While the statute focuses on public information, the delay inherent in court challenges and EIS revisions can delay projects for years. This gives the groups opposing the project time to build political opposition to the project.
We are going to start our NEPA section with a bit of history. In 1962, Rachael Carson, a writer and naturalist, published Silent Spring. The book is credited with starting the modern environmental movement. (By this I mean the movement that focuses on the health effects of pollutants on people, as opposed to the much older movement that focused on preserving natural spaces and the creation of national parks.) This leads to the passage of NEPA in 1970. Watch the short video linked below on Rachael Carson and the impact of Silent Spring.
Then review:
NEPA – Parsing the Statute – Video – Narrated PowerPoints (they are the same, just different formats)
This is a brief introduction to the NEPA statute that I recorded so we do not have to spend class time reviewing the basic statute. If you have taken environmental law, you will already be familiar with NEPA.
The courts have begun to require an analysis of the impact of projects on climate change to be included in the EIS. This gives environmental groups a way to attack environmentally unsound projects and assure that the full range of risks to the climate is included in the EIS. At the same time, this will delay the project, giving time to find other ways to stop the project. Interestingly, some of the same issues came up in the earliest NEPA case, which involved the licensing of a nuclear power plant. The plaintiffs wanted an analysis of substituting energy conservation as an alternative to the construction of the plant included in the EIS. We are going to look at this old case and a modern case directly incorporating climate considerations into the NEPA analysis:
The US National Strategy was hopelessly vague. We are going to look at The Pathways to Decarbonization report, which is a crowd-sourced effort to develop meaningful legal approaches to decarbonization. , i.e., what we have to do to reduce GHGs to manageable levels. Scan through the report and look at the slides. I will review it in class.
#1 BS detector – US Gulf Coast projects modeled on Dutch. First, the Dutch have a politically homogenous political system, as least as regards public works and climate change, and they accept that they have to make personal sacrifices and pay high taxes to build and maintain public projects. Second, the worst-case Dutch storms generate much lower surge than Gulf Coast hurricanes. Third, the whole country is less than 1/3 the size of Louisiana but with nearly 18,000,000 citizens and a strong economy.
This is the official strategy of the Biden administration. We are going to go through this to identify the different economic sectors involved and the places where government regulation will be necessary. This is not as dense reading as cases, but there are a lot of important concepts. Fortunately, this is written for laymen. Look at the graphs and try to understand what the graph is showing. Try to get through by Tuesday. Even if we do not get though it all in one class, the first parts make more sense if you have scanned the whole document.
Global warming is making extreme weather events and their consequences worse, but they are only disasters when people are in the way. The Louisiana coast has always been subject to major hurricane damage. As a natural process, hurricanes help distribute sediment into the marsh and sustain the wetlands and the delta. But when people choose to live in the coastal zone, hurricanes become disasters. Look at New Orleans. Levees are built, which hasten the destruction of the delta and coastal wetlands. Population density increases behind the levees, increasing the catastrophe when the levees fail or a wet storm fills the city with rain and destroys the structures with wind. The more protection we add, the greater the catastrophe when the defenses fails. This is called the levee effect.
We will look at this in a later class. Thought question – what is the political effect of a 2050 target?
Assignment
Read the assigned paper from last class and watch the video introduction if you have not done so. We will talk about the findings in class and their implications.
Review these short discussions of basic concepts about the earth’s atmosphere for the start of my presentation about basic climate science.
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?
We will learn that warmer oceans for longer periods each year lead to more opportunities for hurricanes in Louisiana and allow hurricanes to retain strength farther up the east coast.
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. This work has become even more relevant in the aftermath of the Trump presidency and current controversies over COVID science and policy.
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 and then watch this video discussing the paper:
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.