News
NRC Certifies First U.S. Small Modular Reactor Design
What 5,000-year-old skeletons tell us about living with climate change, discussing Robbins Schug, Gwen, et al. “Climate change, human health, and resilience in the Holocene.” Proceedings of the National Academy of Sciences 120.4 (2023): e2209472120.
Assignment
Part I
We will start with a discussion of projections gone wrong and their effects on the climate change debate. One of the roots of climate change skepticism is the backlash from projections made in the late 1960s and early 1970s that overpopulation would lead to widespread famine and a shortage of natural resources by the 1990s. The primary document was The Population Bomb. Read the Forward of the Population Bomb for class. The second was The Limits to Growth. This is a more technical report from a group of MIT scientists. It did not make the same specific predictions as The Population Bomb, but it did find that overconsumption, combined with increasing population, was an acute threat that would eventually lead to critical resource shortages. Read the Introduction to The Limits to Growth and The Club of Rome, Skeptics and Myths We Believe, a short discussion of how the findings of the report were misrepresented.
We will then talk about the politics of population – the topic of the Population Bomb – and why there is a push from some sectors of both the left and the right to increase the population of the US. Start with Are Malthus’s Predicted 1798 Food Shortages Coming True? Then read this interview: The case for more — many more — Americans and this article Why U.S. Population Growth Is Collapsing. Think about the economic impact of a lower and older population in the US, which depends on a large base of younger workers to pay for Medicare and Social Security. Also think about the politics of population control in the United States. But what about climate? Can we expand the population without making the climate problem much worse?
Part II
When we finish Part I, we are going to start the second section of the course, in which we will look at the history of EPA GHG regulation. This will extend over both classes this week. What we do not cover on Tuesday will be extended until Thursday.
Before we start this section, we need to do some background work. Administrative law is fundamental to modern law practice. Unfortunately, most law school curriculums have their roots in the 1800s and thus do not include administrative law as a first-year required course. Most of the regulatory cases we are going to read stem from fights over the rulemaking process. If you have had administrative law and remember rulemaking, you are good to go. If you have not had administrative law, or you want to review what you learned about rulemaking, you need to watch this video or play the narrated slide show:
Introduction to Rulemaking for Climate Law Students – Video – Narrated PowerPoint
The starting point for EPA GHG regulation is Massachusetts v. E.P.A. This case was a fight over a petition for rulemaking under APA § 553 (e):
Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
This is the text (not a scan of the original document) of that petition:
Scan through this to see the format and the basic arguments for why climate change is a threat. It is a simple document that begins with the requested regulation, then the parties who are requesting the regulation, then the legal justifications for the request. Read carefully from III. THE ADMINISTRATOR HAS A MANDATORY DUTY TO REGULATE GREENHOUSE GASES UNDER THE CLEAN AIR ACT, p.30 to the end. This is the actual request for rulemaking.
The EPA answered the petition saying that it did not have the legal authority to regulate GHGs and that even if it did have the authority, it did not think it would be good policy to regulate them. The petitioners then challenged the EPA ruling in Cir. Court, arguing that the agency did have the authority to regulate GHGs. The Circuit Court upheld the EPA action, but did not address the standing issue.
Read the highlighted text in the Circuit Court case on pp. 9-10.
Massachusetts v. E.P.A., 415 F.3d 50 (D.C. Cir. 2005)
The court reasoned that if it found that the EPA action was proper, it would not have to resolve the standing issue. The Court then found that the EPA acted properly and thus dismissed the case without reaching standing.
Petitioners then filed a writ of certiorari seeking review by the Supreme Court.
EPA Response Brief to Writ of Certiorari in Mass v. EPA (edited for standing argument)
Read this excerpt from the brief. This sets up the issues for the Supreme Court review of standing. We are now going to listen to the arguments before the Supreme Court on standing:
Oral argument in Mass v. EPA (Oyez)
(The link to the recording of the argument is under the case name on the left sidebar.) The petitioner’s standing argument starts at 0 (beginning of the recording to 17:55. The EPA response starts at 27:00 and runs to 45:20. If you have not used Oyez before, it links the written transcript of the oral argument to the audio. It also identifies the judge speaking to make it easier to follow the argument. The argument is excellent. When you read the Supreme Court opinion you will see how the questions from the argument end up in the majority and dissenting opinions. There is a bitter split on the court over the standing issue. This issue is likely to be reexamined in future climate cases because the majority of the court has changed since this decision. All of the conservative judges except Kennedy opposed standing in the opinion. Kennedy is gone and the new judges are likely to join those who opposed standing.
Now read Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – standing
Slides – Mass v. EPA – standing – revised