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 Uncategorized
Day 12 – 16 Feb
News
US coastal communities underestimate the danger posed by rising seas
What Would Earth’s Temperature Be Like Without an Atmosphere?
Assignments
Before we look at the Endangered Species Act, we are going to take a deeper look at how NEPA litigation works. The statute is only the starting point. You have to address the specific facts of the EIS that you are attacking. The first problem is getting standing. While NEPA is intended to provide information for all of the public, the courts still require plaintiffs to show Lujan standing, as we reviewed in Mass v. EPA. In the Haaland case, plaintiffs sued the Department of Interior, headed by Secretary Haaland, for not conducting a proper NEPA review of the offshore lease process in the Gulf of Mexico. We are going to start with the complaint. Read it to find the standing facts asserted by the plaintiffs, and find how they were handled by the court in the Haaland opinion. (Hint – most of the discussion is in the footnotes.) We will return to the complaint and the opinion to see how the plaintiffs present their factual allegations and how the court handles them.
Friends of the Earth v. Haaland – Complaint for Declaratory and Injunctive Relief – Annotated complaint
Friends of the Earth v. Haaland – Opinion (27 Jan 2022) – annotated copy
For contrast, we are going to look at a 5th Cir case on nearly the same standing facts and see what it looks like when a court wants to deny standing to plaintiffs.
Review the highlighted portions – Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102, 2019 WL 4126355 (5th Cir. Aug. 30, 2019
This is the court’s order dismissing the case based on not finding that the plaintiffs had standing. I have highlighted the key sections so you can scroll through and review the court analysis. The key is that the court rejects claims that point source pollution from rigs affects the entire Gulf. This discussion starts on page 7. The failure to do a proper NEPA review is a procedural rights claim, subject to the relaxed standards for injury in procedural rights claims. Despite this, the plaintiffs fail because the nature of rigs in the Gulf makes it difficult for individuals to show a nexus between a discharge by a specific rig and their injuries proximate to that rig. This allows EPA to escape citizen suit review even if it issues a bad permit. The lesson is to not file an environmental case in the 5th circuit if you can avoid it.
After reviewing standing, read through the Haaland opinion using the annotations to see how the court handles the detailed requests for deeper analysis of the climate change issues posed by the leases.
Day 11 – Feb 14
News
A federal judge canceled a major oil and gas lease sale over climate change.
Last spring, but it shows the power of NEPA
Assignment
Finish West Virginia v. EPA.
Other than mobile sources, the Court has killed the EPA’s authority to directly regulate GHGs. We are now going to turn to statutes that can be used to challenge specific projects which exacerbate climate change or which will pose risks to the community because they have not properly accounted for the effects of climate change. The most important of these is the National Environmental Protect 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:
The National Environmental Policy Act of 1969, as amended
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:
Slides – NEPA Cases – updated
Resources
Day 10 – Feb 9
News
A national scandal’: how US climate funding could make water pollution worse
‘Monster profits’ for energy giants reveal a self-destructive fossil fuel resurgence
How evangelicals moved from supporting environmental stewardship to climate skepticism
Assignment
Finish the material from last class.
UARG Study Guide Slides – revised and simplified
West Virginia v. EPA (Edited – PDF) – Word
Slides – West Virginia v. EPA – revised
Day 9 – 7 Feb
News
Salon: Climate denial campaign goes retro with new textbook.
Assignment
Finish material from last class on Mass. v. EPA.
Slides – Mass. v. EPA – Chevron – revised
The next critical case on the EPA power to regulate GHGs deals is Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302 (2014).
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., 573 U.S. 302 (2014) – annotated – UARG – PDF
I have deeply annotated the case to allow those of you without environmental law to follow the legal analysis.
UARG v. EPA – Dissent (annotated)
I prepared this detailed analysis of the dissent in light of the West Virginia v. EPA decision. In retrospect, this forecasted how the law would shift as the composition of the court changed.
Day 8 – 2 Feb
News
I use it because it’s better’: why chefs are embracing the electric stove
Assignment
Slides – Mass v. EPA – standing – revised – again
Carry over from last class.
Once the court got past the standing issue, it looked at whether the EPA had the authority to regulate GHGs. This was analyzed under the Chevron test, which will see in later cases.
Read Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – Chevron
Slides – Mass. v. EPA – Chevron – revised
Day 7 – 31 Jan
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
Day 6 – 24 Jan
Moodle Attendance
There are three options to choose for attendance status: present, corrected, and absent. Moodle auto-populated the point allocation for each, giving “present” 2 points, “corrected” 1 point, and “absent” 0 points.
As the “corrected” status is merely used for administrative purposes, and functionally serves the same purpose as “present,” the point allocations for both “present” and “corrected” have been set to 1.
News
Bill Gates backs new startup aiming to reduce emissions from cow burps
E&C Republicans elevate climate in subcommittee shakeup
For use in class – it is firewalled so you probably cannot read it without a subscription.
Assignment
We will finish our discussion of the IPCC report from the last class. Be sure you have read the report. I have updated the slides: Day 6 – revised
We conclude our discussion of the potential impacts of climate change. The next section is a look at mitigation – what needs to change to limit GHG emissions. We may not get to this material until next class.
This is the official strategy of the Biden administration. Read through Chapter 4, which ends on page 34. It’s written for laymen and is fast reading. We will discuss this in class. Look at the graphs and try to understand what the graph is showing. Try to get through by Tuesday.
Watch this video. It is a panel of some of the leading experts on the legal pathways to reducing GHGs. We will also discuss this in class.
Slides – Pathways to deep decarbonization in the United States
Day 5 – 24 January
News
Ventusky Weather Site – graphic display of global wind and weather
When scientists tagged a curious seal, he led them to signs of a potential climate disaster
NASA’s Double Asteroid Redirection Test Is a Smashing Success
Climate change fiction
If you have read any of these or watched the movies, please speak up in class! Email me if you have others to add to the list.
The Ministery for the Future – Rolling Stone interview with the author – Bill Gates review
Termination Shock – Author interview – Slate review
The Deluge (just published) – Author interview – Times review
Climate change movies and documentaries
Assignment
Last class, we looked at the IPCC projections of how much the climate might change with different emissions scenarios. In this class we are going to look at the potential impacts of those changes. This is a 34-page summary for policymakers (non-scientists and lawyers) of the major report on climate as of 2022. Read through it to get. This is a link to the full report. Download it and browse through it to get a sense of the overall scope of the work in the reports.
Resources
The Cheap and Easy Climate Fix That Can Cool the Planet Fast
State of the Carbon Cycle Report (SOCCR)
Day 4 – 19 Jan
News
The Guardian: Atmospheric dust may have hidden true extent of global heating.
Skipped Showers, Paper Plates: An Arizona Suburb’s Water Is Cut Off
Temperatures on Greenland haven’t been this warm in at least 1,000 years, scientists report
Assignment
I will continue my presentation on climate change science. Read through these documents as an overview of the IPCC. These are written for policymakers and lawyers, not scientists.
AR6 Climate Change 2021: The Physical Science Basis – Summary for Policy Makers
Resources
Day 3 – 17 Jan
News
Telling a different story – how ranchers who deny climate change come to love wind farms.
2021 U.S. Billion-dollar Weather and Climate Disasters in Historical Context – Hazard and Socioeconomic Risk Mapping (NOAA) – Louisiana (p. 9)
The New Yorker: Three Climate Reports: The Good, the Bad, and the Ugly
The U.S. National Blueprint For Transportation Decarbonization (White House 2022)
Preliminary US Greenhouse Gas Emissions Estimates for 2022 (Rhodium Group 2023)
GLOBAL CLIMATE HIGHLIGHTS – Globe in 2022 (European Commission 2023)
Assignment
Review these short discussions and videos of basic concepts about the earth’s atmosphere for the start of my presentation about basic climate science.
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?
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?
Why water really controls the temperature of the planet, but why other GHGs set the thermostat.
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?
One more variable
This is a direct effect of CO2, separate from its effect on heat retention in the atmosphere.
Day 2 – Jan 12
News
Oceans were the hottest ever recorded in 2022, analysis shows
New York Gov. Kathy Hochul proposes banning natural gas in all new buildings
Republicans turn up the heat on a new culture war target: gas stoves
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” at 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 so I have recorded a video guide to the article:
Cultural Cognition Intro – Climate Class
You can skim the paper, then watch the guide and look back at the sections discussed in the guide to make sure you understand them. Or you can watch the guide as you go through the paper to help you figure out the paper. Look carefully at the section of the paper that discusses why telling people that 97% of scientists believe something is not a good way to get them to change their minds.
Day 1 – Jan 10
First Day Assignment
You have homework – by Sunday night, send me an email – richards@lsu.edu – briefly describing something you are worried about related to climate change. It does not matter if you are worried about polar bears or having to get rid of your gas-guzzling pickup truck or Mustang Shelby GT500. Include a picture if you can find or take one. I will pull these together as the basis of our class discussion for Tuesday. There is no right answer.