Qualified Immunity from Constitutional Torts

Cleveland v. Bell , 5th Cir., No. 18-30968, 9/13/19

Prison nurse who ignored the deceased prisoner’s requests for medical care found to have qualified immunity from a 1983 claim. She did not show conscious indifference to his plight because she believed he did not need medical care:

“The Supreme Court has made clear that actual knowledge is an essential element of Plaintiffs’ burden, as mere negligence cannot establish a constitutional violation. Given the lack of evidence about Nurse Bell’s subjective awareness of a substantial risk of serious harm to Cleveland, Plaintiffs cannot show a constitutional violation at step one of the qualified-immunity analysis.” at 6, citations omitted.

2018 State of U.S. High Tide Flooding with a 2019 Outlook

NOAA, 2018 State of U.S. High Tide Flooding with a 2019 Outlook, NOAA Technical Report NOS CO-OPS 090 (June 2019)


NOAA tide gauges are measuring rapid changes across the entire severity-spectrum of coastal flood risk along U.S. coastlines due to RSL rise. The most noticeable impact of RSL rise is the increasing frequency of HTF (sometimes referred to as ‘nuisance’ or ‘sunny day’ flooding), which typically causes minor and disruptive impacts. However, within many rural and urban U.S. coastal communities, the cumulative effects of more HTF upon public-works systems, roads, first floors of businesses, and residences (among others) is becoming a serious problem. Because of this, communities need projections for ‘next year’ and for the coming decades for preparedness and planning purposes to respond to the growing RSL-related HTF threat.

Global trends in climate change litigation: 2019 snapshot

Setzer, Joana, and Rebecca Byrnes. “Global trends in climate change litigation: 2019 snapshot.” (2019).

Headline issues

• Climate change litigation continues to expand across jurisdictions as a tool to
strengthen climate action, though more evidence of its impact is needed.
• Climate change cases have been brought in at least 28 countries around the
world, and of the recorded cases more than three quarters have been filed in
the United States.
• Most defendants are governments but lawsuits are increasingly targeting the
highest greenhouse-gas-emitting companies.
• Climate change-related claims are also being pursued by investors, activist
shareholders, cities and states.
• Climate change litigation in low- and middle-income countries is growing in
quantity and importance.


Climate change litigation is increasingly viewed as a tool to influence policy
outcomes and corporate behaviour. Strategic cases are designed to press national
governments to be more ambitious on climate or to enforce existing legislation,
while cases against major emitters seek compensation for loss and damage.
Routine planning and regulatory cases are increasingly including climate change
arguments, exposing courts to climate science and climate-related arguments
even where incidental to the main claim.



Environment and Climate Change

Global environmental and ecological degradation, as well as climate change, are likely to fuel competition for resources, economic distress, and social discontent through 2019 and beyond. Climate hazards such as extreme weather, higher temperatures, droughts, floods, wildfires, storms, sea level rise, soil degradation, and acidifying oceans are intensifying, threatening infrastructure, health, and water and food security. Irreversible damage to ecosystems and habitats will undermine the economic benefits they provide, worsened by air, soil, water, and marine pollution. (p 23)

The Precautionary Principle

Bourguignon, Didier. “The precautionary principle: Definitions, applications and governance.” European Parliament Research Service Paper (2015).

Treaty on European Union, Article 191

2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

The Rio Declaration on Environment and Development (1992)

Principle 15

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The First Climate Treaty – The Montreal Protocol

Chlorofluorocarbons and Ozone Depletion – A National Historic Chemical Landmark

Molina, Mario J., and F. Sherwood Rowland. “Stratospheric sink for chlorofluoromethanes: chlorine atom-catalysed destruction of ozone.” Nature 249.5460 (1974): 810. (the first ozone hole paper)

Environmental Protection Agency. “Regulatory Impact Analysis: Protection of Stratospheric Ozone.” (1988).

The Montreal Protocol on Substances that Deplete the Ozone Layer

Summary – Montreal Protocol on Substances that Deplete the Ozone Layer

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

Negotiating the Montreal Protocol on Protecting the Ozone Layer – interview with one of the State Department negotiators.

NASA Ozone Watch

Financing the Montreal Protocol in the developing world

Report on the World Bank Multilateral Fund for the Implementation of the Montreal Protocol (2007)

Peter M. Morrisette, The Evolution of Policy Responses to Stratospheric Ozone Depletion, 29 Nat. Resources J. 793 (1989). (Available at: https://digitalrepository.unm.edu/nrj/vol29/iss3/9)

Sunstein, Cass R. “Of Montreal and Kyoto: A Tale of Two Protocols.” Envtl. L. Rep. News & Analysis 38 (2008): 10566.

EPA, Stratospheric Ozone Protection: 30 Years of Progress and Achievements (2017)

United Nations Environment Programme. Ozone Secretariat. Handbook for the Montreal protocol on substances that deplete the ozone layer. UNEP/Earthprint, 2018.

World Meteorological Organization (WMO), Executive Summary: Scientific Assessment of Ozone Depletion: 2018, World Meteorological Organization, Global Ozone Research and Monitoring Project – Report No. 58, 67 pp., Geneva, Switzerland, 2018.

Velders, Guus JM, et al. “The importance of the Montreal Protocol in protecting climate.” Proceedings of the National Academy of Sciences 104.12 (2007): 4814-4819.




Legal Pathways To Deep Decarbonization In The United States: Summary And Key Recommendations (Publisher’s WWW site)

Dernbach, John C., The Dozen Types of Legal Tools in the Deep Decarbonization Toolbox (September 10, 2018). 39 Energy Law Journal 101; Widener Law Commonwealth Research Paper No. 18-12.

Jacobson, Mark Z., et al. “100% clean and renewable wind, water, and sunlight (WWS) all-sector energy roadmaps for the 50 United States.” Energy & Environmental Science 8.7 (2015): 2093-2117.

Rebuttal: Clack, Christopher TM, et al. “Evaluation of a proposal for reliable low-cost grid power with 100% wind, water, and solar.” Proceedings of the National Academy of Sciences 114.26 (2017): 6722-6727.

Williams, James H., et al. “Pathways to deep decarbonization in the United States.” The US Report of the Deep Decarbonization Pathways Project of the Sustainable Development Solutions Network and the Institute for Sustainable Development and International Relations, Energy and Environmental Economics, San Francisco, CA, accessed Apr 23 (2014).