OHIO RIVER BASIN– Formulating Climate Change Mitigation/Adaptation Strategies through Regional Collaboration with the ORB Alliance

Generally, modeling results indicate a gradual increase in annual mean temperatures between 2011 and 2040 amounting to one-half degree per decade, with greater increases between 2041 and 2099 of one full degree per decade. Hydrologic flow changes show substantial variability across the ORB through the three time periods, with Hydrologic Unit Code (HUC)-4 sub-basins located northeast, east, and south of the Ohio River expected to experience greater precipitation and thus higher stream flows—up to 50% greater—during most of the three 30-year periods. Conversely, those HUC-4s located north and west of the Ohio River are expected to experience ever-decreasing precipitation (especially during the autumn season) resulting in decreased in-stream flows—up to 50% less—during the same periods.

The Children’s Climate Case – Juliana v. United States

Court Documents

Juliana v. United States, No. 6:15-CV-01517-TC – First Amended Complaint

Juliana v. United States, No. 6:15-CV-01517-TC – Federal Defendants First Motion to Dismiss

Juliana v. United States, No. 6:15-CV-01517-TC, 2016 WL 6661146 (D. Or. Nov. 10, 2016) – District Court Finds that Children have standing under public trust doctrine to bring climate action. 

Expert Reports

The Economics of Climate Change – Expert Report Of Joseph E. Stiglitz, Ph.D.

South Asia’s Hotspots : Impacts of Temperature and Precipitation Changes on Living Standards

South Asia's Hotspots : Impacts of Temperature and Precipitation Changes on Living Standards

The Report – Mani, Muthukumara, Sushenjit Bandyopadhyay, Shun Chonabayashi, Anil Markandya, and Thomas Mosier. “South Asia’s Hotspots.” (2018).

From the World Bank site:

South Asia is highly vulnerable to climate change. Average temperatures have been rising throughout the region, and rainfall has become more erratic. These changes are projected to continue accruing over the coming decades.South Asia’s Hotspots: The Impact of Temperature and Precipitation Changes on Living Standards is the first book of its kind to provide granular spatial analysis of the long-term impacts of changes in average temperature and precipitation on one of the world’s poorest regions. South Asia’s Hotspots finds that higher temperatures and shifting precipitation patterns will reduce living standards in communities across South Asia—locations that the book terms “hotspots.” More than 800 million people in South Asia currently live in communities that are projected to become hotspots under a carbon-intensive climate scenario. Global action to reduce greenhouse gas emissions will reduce the severity of hotspots. Diverse and robust development is the best overall prescription to help people in hotspots. The book also suggests actions tailored to each country in the region—such as increasing employment in nonagricultural sectors, improving educational attainment, and expanding access to electricity— that would offset the declines in living standards associated with hotspots. South Asia’s Hotspots complements previous studies detailing the impacts of sea-level rise and extreme events on the people of South Asia. Together, these bodies of work create a sound analytical basis for investing in targeted policies and actions to build climate resilience throughout the region.

Takings Cases Relevant to Climate Change

Miller v. Campbell Cty., 722 F. Supp. 687 (D.Wyo. 1989) – Temporary forced evacuation from home is not a taking for 42 USC 1983

Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 795 (Tex. 2016), reh’g denied (Oct. 21, 2016) – no takings by failing to enforce flood control plan.

Litz v. Maryland Dep’t of Env’t, 446 Md. 254, 131 A.3d 923 (2016), reconsideration denied (Mar. 24, 2016) – It is possible for a plaintiff to state a claim for inverse condemnation by pleading governmental inaction in the face of an affirmative duty to act.

Judge dismisses City of Oakland climate case based on nuisance – 2018

From the Opinion:

It may seem peculiar that an earlier order refused to remand this action to state court on the ground that plaintiffs’ claims were necessarily governed by federal law, while the current order concludes that federal common law should not be extended to provide relief. There is, however, no inconsistency. It remains proper for the scope of plaintiffs’ claims to be decided under federal law, given the international reach of the alleged wrong and given that the instrumentality of the alleged harm is the navigable waters of the United States. Although the scope of plaintiffs’ claims is determined by federal law, there are sound reasons why regulation of the worldwide problem of global warming should be determined by our political branches, not by our judiciary.

Federal Circuit Rejects Court of Claims finding that MRGO Caused a Taking by Flooding

(Post under revision)

Draft article discussing the St. Bernard case: A Radical Proposal: Does St. Bernard Par. Gov’t v. United States allow the Federal Government to Step Away from Flood Protection and Create Wild Seashores and Wild Rivers?

This case arose from claims brought by property owners in St. Bernard and New Orleans claiming that the MRGO (Mississippi River Gulf Outlet) canal increased the flooding from Hurricane Katrina and after. This is the same junk science that was used in the Katrina Levee Breech Cases, which were ultimately dismissed for FTCA immunity. These claims were an end run around the FTCA, claiming a constitutional taking, which does not have a discretionary authority defense. The Court of Claims ruled in favor of the property owners in: St. Bernard Par. Gov’t v. United States, 121 Fed. Cl. 687, 690-91 (2015). This was reversed and the claims dismissed by the Federal Circuit, which hears appeals from the Court of Claims:

St. Bernard Par. Gov’t v. United States, 887 F.3d 1354 (Fed. Cir. 2018)

The Public Trust Doctrine and Sea Level Rise

Center for Ocean Solutions, Stanford Woods Institute for the Environment, The Public Trust Doctrine: A Guiding Principle for Governing California’s Coast Under Climate Change (2017)

This report looks at the legal implications as the mean high tide line – the demarcation between public and private land in California – moves inland with sea level rise.

Law Professor’s Brief on Louisiana Public Trust Doctrine

Disaster Tourism: Honest Altruism or Vulgar Voyerism?

(Student post from my coastal law class, 2010)

Dark tourism is tourism involving travel to sites associated with death and suffering. Thanatourism, derived from the Ancient Greek word thanatos for the personification of death, is associated with dark tourism but refers more specifically to violent death. Dark tourism and the dark tourists are motivated by death and disaster and apocalypse rather than by sun and sea and sand and pastoral living, with even ecotourism and adventure travel no longer stimulating enough.

Ownership of Submerged Lands in Louisiana

INVENTORY OF STATE LANDS OFFICE OF STATE LANDS DIVISION OF ADMINISTRATION (2018)

The state does not have clear title to an estimated 286,467 acres of water bottoms, as private parties also claim ownership of these lands. These “dualclaimed” water bottoms cause several issues, including restricted public access, negative economic impacts, and potentially reduced revenue generating opportunities.

Mestayer, Jacques. “Saving Sportsman’s Paradise: Article 450 and Declaring Ownership of Submerged Lands in Louisiana.” La. L. Rev. 76 (2015): 889.

This article analyzes whether fisherman and hunters should have access to open water around privately owned coastal wetlands.

Constitutionality of the Louisiana Freeze Statute and Whether the Public Trust Doctrine Permits a Challenge to the Freeze Statute (2015)

The Freeze Statute allows landowners to keep the royalties from oil and gas production on private land that has become state property through subsidence/sea level rise.

Law Professor’s Brief on Louisiana Public Trust Doctrine

Kelly Haggar, Legal Aspects of Coastal Change (2016)

Coastal change is unlikely to require new law but properly dealing with its effects and planning our response to them will require more than just a good understanding of present law. Statutes rest on fundamental – but often unstated – societal assumptions favoring some outcomes and denying others. For example, Western societies presume land should remain in commerce and always be productive.

Virtually all of the major cases and controversies concerning water and/or coastal issues arising around the nation in recent years – property damage and land loss during hurricanes due to exploration and production (E & P) canals, increased expenses to levee boards from a subset of those same E & P canals, diversions affecting oyster beds, beach front lot owners objecting to beach restoration projects, Anthropogenic climate change causing increasing hurricane damage – were all resolved by applying existing law. Many of those laws are not just based upon Roman laws going back over 2,000 years; some are almost word-for-word copies of them.

Unfortunately, much of the general public either does not understand the basic principles of land use and tort or perhaps simply wishes for different outcomes despite existing (and well-settled) laws. Worse, there does not seem to be sufficient appreciation of the underlying geological factors driving some of the changes in and along our coasts, marshes, and swamps.

Law as an institution has never attempted to “control nature” per se but it most assuredly attempts to specify and control who gains and who loses - and why – when a river changes course, when new land forms at the beach, and when a dispute breaks out as to “what is a beach?” and “who owns it?”

A general overview of the major cases and an explanation of why they turned out as they did will better enable coastal planners to find – and stay within – more realistic limits of what can and cannot be accomplished within the framework of our existing laws. Moreover, if American society does determine a new direction in coastal programs is needed, a fuller understanding of current law will likely allow better choices to be consciously made. However, since law can only help illuminate the choices and assign the risks to various parties, ultimately geology  – not law – is the key to future decisions about our coastlines.