News
The ICJ’s Advisory Opinion on Climate Change: What Happens Now?
Assignment
Finish presentation from last class. Complete the readings for last class if you are have not done so.
Archives for March 2023
Day 22 – March 28
News
Mississippi Has Invested Millions of Dollars to Save Its Oysters. They’re Disappearing Anyway.
CBS Minnesota: NOAA still cautions potential for “major” spring flooding along Mississippi River.
Just decided – NEPA for Bonne Carre opening: Harrison Cnty., Miss. v. Army Corps of Eng’rs , 5th Cir., No. 21-60897, 3/27/23.
Related case – Fish and Wildlife consultation for Bonne Carre opening: HARRISON COUNTY, MISSISSIPPI, et al. PLAINTIFFS v. U.S. ARMY CORPS OF ENGINEERS DEFENDANT. Additional Party Names: City of Biloxi, Mississippi, City of D’Iberville, Mississippi, City of Diamondhead, Mississippi, City of Pass Christian, Mississippi, City of Waveland, Mississippi, Hancock Cnty., Mississippi, Mississippi Com. Fisheries United, Inc., Mississippi Hotel & Lodging Ass’n, No. 1:19CV986-LG-RPM, 2023 WL 2585661 (S.D. Miss. Jan. 18, 2023)
Assignment
We are going to take a hard look at the Mississippi River and delta as an introduction to our discussion of flood law and adaptation. The key fact about the Louisiana coast is that it is very flat and very low. Review this map to get a sense of the elevation of coastal Louisiana. Focus on the red areas, which are less than 5 foot above sea level:
The story of Louisiana is the story of trying to control the Mississippi and exploit the delta. A key piece of this is the problem of keeping the Mississippi from changing courses and stranding Baton Rouge and New Orleans, which becomes more likely with climate change.
Find the Old River Control Structure on Google Maps and look at it and the river from a satellite view, then follow down the Atchafalaya floodway to Morgan City to see where the water would go if the structure fails.
Read: John McPhee, Atchafalaya, New Yorker (1987) (pdf version)
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 a fascinating blend of science and history and is very well written.
Now read a modern analysis of the risks:
Part 1 of this series: America’s Achilles’ Heel: the Mississippi River’s Old River Control Structure
Part 2 of this series: Escalating Floods Putting Mississippi River’s Old River Control Structure at Risk
Part 3 of this series: If the Old River Control Structure Fails: A Catastrophe With Global Impact
Delta slides – working
Day 21 – March 23
News
New climate paper calls for charging big US oil firms with homicide
Assignment
Finish the materials from last class.
We are going to look at the second defense to the nuisance claims against Exxon Mobil, the use of state anti-SLAPP statutes to attack the claims as violations of the company’s right to petition the government. (Short review of SLAPP suits.) The anti-SLAPP suits directly tee up the free speech defense that the company wants to get before the Supreme Court. There is some evidence that the fossil fuel industry was an early player in the movement to get the Court to expand commercial free speech protections:
Exclusive: The Fossil Fuel Roots of the Corporate Free Speech Movement (drilledpodcast.com)
The case we are looking at was argued before the Massachusetts Supreme Court. The opinion is conclusionary so we are going to read Exxon Mobil’s brief before we read the court’s opinion on the motion.
Exxon Mobil v. Massachusetts – Anti-SLAPP Brief
Think about whether ExxonMobil is the sort of plaintiff that the anti-SLAPP statute is intended to protect and how that might influence the Mass court. There is no federal anti-SLAPP statute, but the current Supreme Court is protective of commercial speech. Is this a path to get the nuisance cases before the Supreme Court?
Read – Special motion to dismiss pursuant to the anti-SLAPP statute denied
Day 20 – March 21
News
Fossil Fuel Executives See a ‘Golden Age’ for Gas, If They Can Brand It as ‘Clean’
IPCC releases final synthesis report for the current review cycle
CLIMATE CHANGE 2023: Synthesis Trailer
Assignment
Review Docket: Delaware v. BP
From last class: Delaware – Exxon motion to support removal
Delaware v. BP – Motion to remand
We are going to take a harder look at these cases from the oil industry/red state POV by reading:
Texas Rules of Civil Produce Rule 202 allows court-ordered discovery prior to the filing of a lawsuit. This was intended for use in limited situations where testimony was likely to be lost before the lawsuit could be filed. For example, you are retained to represent a victim of a serious automobile accident who is in the hospital and may not survive her injuries. You can use Rule 202 to record a deposition that can be used if the accident results in litigation. Exxon has been using this to countersue the lawyers who are bringing climate lawsuits as a means of harassment and to try to get documents that would otherwise be protected by the attorney-client privilege.
Day 19 – March 16
News
Lawsuit charges Biden administration with violating multiple laws when approving ConocoPhillips’ Willow oil & gas project in Alaska – the complaint
Texas Officials Target Climate Science In Textbooks
Will Juliana come back from the dead? – In re Haw. Electric Light Co., Inc. (March 13, 2023)
Assignments
We will continue with the materials from last class.
We are adding the next legal argument, removal. Thinking back to Civ Pro, remember that if the defendant wants to remove the case to federal court, it must file the petition for removal rather than answering the complaint.
Delaware – Exxon motion to support removal
Day 18 – March 14
News
Why Russia Has Such a Strong Grip on Europe’s Nuclear Power.
Future warming from global food consumption
Why Biden’s approval of Willow drilling project is ‘a colossal stain’ on his legacy
Assignment
Columbia Law School Climate Change Litigation Databases – the core resource for climate change litigation. Spend a few minutes getting a sense of the number and variety of climate change cases.
Last class we learned from Kivalina that American Electric Power Co., Inc. v. Connecticut (“AEP”), 131 S. Ct. 2527, 2535 (2011), which found that the CAA displaced federal nuisance cases against GHG emitters. State nuisance cases were not at issue in AEP and were not addressed by the Supreme Court. Since AEP, state and local governments (almost all in red states) have been filing state nuisance cases against the fossil fuel industry, primarily against oil companies. These are essentially misrepresentation cases based on the oil industry suppressing and misrepresenting information about the effects of GHGs from fossil fuel use. This resulted in less government regulation and more consumption of fossil fuels, and hence more climate change damages.
We are starting with articles about the claimed misrepresentations. The oil companies followed the denial playbook that was pioneered by the tobacco industry, including using some of the same organizations to manage the disinformation claims. There was a massive state class action against tobacco with a huge settlement fund, which helps drive these claims. Read these articles and be prepared to discuss this misrepresentation theory – pro and con because it is a complex question.
How the oil industry made us doubt climate change – (pdf)
Climate denial timeline for litigation
The first of these three articles is a peer-reviewed article analyzing climate communications by ExxonMobil and showing how its public position on climate change was at odds with its internal knowledge. The second is a criticism of the article, and the third is the response to the criticism by the authors. Scan these to see the arguments.
Next, we are going to read a complaint from a representative case. The same law firm has filed many of these cases so the complaints from most cases are similar. We will first review the docket to see what litigation in one of these cases looks like. These are in reverse chronological order, so scroll to the bottom to start with the earliest documents.
Delaware v. BP America Inc. – Docket
Then read the complaint. This is long and we may not finish on Tuesday. Read the introduction, scan the parties, and read carefully starting with Jurisdiction on page 61.
Delaware v. BP America Inc. – Complaint
Resources
Day 17 – March 9
News
28th Annual Tulane Environmental Law & Policy Summit
Great free conference!
Unprecedented snowfall on US west coast is ‘once-in-a-generation’ event
Climate change means more extremes at both ends, not just more warming.
Assignment
We have reviewed the science of climate change and the legal cases on the regulatory approach to climate. After West Virginia v. EPA, regulations under the CAA have been cut off. Congress could amend the CAA to clearly address climate change mitigation, but that is unlikely to happen. The IRA is pure incentives. It did not modify the CCA and thus did not address the West Virginia v. EPA problem. We are now going to look at a case that asks the courts to create a right to a healthy (not warming) environment and then enforce it.
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.
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.
Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (pdf)
The next case deals with federal law nuisance claims against the fossil fuel industry and leads us into the state law nuisance cases.
Background on Kivalina and the permafrost problem
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
Read the majority opinion in Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012). Kivalina – annotated Why did their claims fail?
Resources
Day 16 – March 7
News
UN delegates reach historic agreement on protecting marine biodiversity in international waters (Draft of the agreement)
U.S. Congress votes to block ESG investing, Biden veto expected
Summary of the Congressional Review Act – the legal mechanism for killing the rule
The resolution and description of the rule – this is about fiduciary duties for pension plans.
Assignment
This chart are the relative emissions of GHGs today. Emissions from developing countries, plus China and India, are almost 2/3 of global emissions. They are also the countries whose emissions are projected to rise significantly between now and 2050, based on current projections. The populations of India and the group of developing countries are also increasing. Raising their populations out of poverty will require a lot more energy. If that energy comes from fossil fuels, as it will based on their current paths, global emissions will likely be the same or even rise by 2050. This will push global warming to 3-4 degrees. Significantly reducing GHG emissions by 2050 requires effective international cooperation.
The Montreal Protocol
Carry over the materials from last class. Rather than spend class time going through the provisions of the treaty, we will use a recorded review so that we can use the class time for discussion.
Montreal Protocol Review – Video | Montreal Protocol Review – Narrated PowerPoint
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 provide money to the developing world to facilitate the transition to safer chemicals. 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 the Kyoto Treaty on Climate Change because it had different standards for the developing world. Yet the US Senate had approved the Montreal Protocol with the same structure roughly 10 years earlier. Why the different results? 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.
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.
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 replaced with refrigerants that are not GHGs. 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 Kigali Amendment has now been ratified.
The Kyoto Protocol
We are next going to briefly review the history of the UN climate negotiations that lead to the Kyoto Protocol.
Review the History of the UN Climate Change Convention.
Read: What is the Kyoto Protocol?
The Kyoto Protocol had binding standards for GHG reductions by developed countries, but relaxed standards for developing countries, which included China. The Kyoto Protocol has effectively been supplanted by the Paris Agreement. It is important because it triggered the Senate to notify the president of what would be unacceptable provisions in a climate treaty.
Read 105th Congress, Senate Resolution 98 – Expressing the sense of the Senate regarding the conditions for the United States becoming a signatory to any international agreement on greenhouse gas emissions under the United Nations Framework Convention on Climate Change. (Passed 95-0)
The Paris Agreement
The Paris Agreement is the current international treaty on climate change. President Obama joined it as an executive agreement, President Trump withdrew the United States, and President Biden has rejoined as an executive agreement.
Scan the text of the Paris Agreement: The Paris Agreement
Read this summary of the treaty: The Paris Agreement – Written Summary
Watch this recorded review of the provisions so we can spend class time on discussion rather than lecture on the provisions:
Paris Climate Agreement Review – Video | Paris Climate Agreement Review – Narrated PowerPoint
The key question is how does the agreement – it is not a treaty for the US – deal with the developing world vs. developed world problem? How does it compare with the structure of the Montreal Protocol? Does it legally require countries to reduce their GHG emissions? What are the problems with its structure? Be prepared to talk about this in class.