March 21

News

Assignment

We are going to do cases by teams. What we do not finish we will hold over until next week.

American Eletric Power Company, Inc. v. Connecticut, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011) – Study Guide

Team 1 – this sets up the preemption argument that all climate change lawsuits based on suing oil companies will have to answer.

Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012) aff’d, 718 F.3d 460 (5th Cir. 2013) –  read the case and the recusal story.

Team 2 – this is a fun local case. The recusal story is amazing.

Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012)

Team 3 – the majority opinion

Team 4 – the concurrence

Resources

Background on Alaskan Villages

Location

A Wrenching Choice for Alaska Towns in the Path of Climate Change

Alaskan Village, Citing Climate Change, Seeks Disaster Relief In Order To Relocate

The Village That Will Be Swept Away

 

 

March 19

News

Most of Nebraska under state of emergency as ‘historic’ floodwaters ravage Midwest

Tropical Cyclone Idai’s Death Toll in Mozambique May Exceed 1,000

Big Southern Hemisphere tropical cyclones are unusual.

Assignment

The next set of climate cases are emission cases against oil companies. They will be controlled by the Supreme Court’s findings on the extent that state law nuisance claims are preempted by the CAA. The starting point for this analysis is the endangerment finding promulgated in the wake of Mass. v. EPA:

Annotated: Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 FR 66496 Tuesday, December 15, 2009

We are going to look at the Endangerment Finding in more detail. I have highlighted the key parts so you can look at the highlights.

Clean Power Plan Final Rule, 80 FR 64662 (October 23, 2015)

Look at it to get a feel for the length and complexity. We are not going to read it.

Slides – Clean Power Plan Summary

Resources

Technical Support Document for the Findings (PDF)

 

Online Assignment 3 – Mass v. EPA

News

The Anti-Science Noise in the White House https://www.nytimes.com/2019/03/07/opinion/climate-change-national-security.html

Reading

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007)Study guide

Mass v. EPA is the key case on GHG regulation under the CAA. You have likely seen this case in varying levels of detail in other courses. These materials will bring everyone up to the same level on the case and set up our discussion of the Endangerment Finding and Clean Power Plan.

Narrated PowerPoints and the quiz have been posted.

Online Assignment 2 – Judicial review of Notice and Comment Rulemaking

Assignment

There are no readings for this assignment. The narrated PowerPoint, a video of the PowerPoint (you only need to watch one), and the quiz, are on the class page on Moodle. (File size limits what I can post on the blog.)

Resources

Annotated: Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 FR 66496 Tuesday, December 15, 2009

Clean Power Plan Final Rule, 80 FR 64662 (October 23, 2015)

Online Assignment 1 – Introduction to Rulemaking

Assignment

There are no readings for this assignment. The narrated PowerPoint, a video of the PowerPoint (you only need to watch one), and the quiz, are on the class page on Moodle. (File size limits what I can post on the blog.)

Resource Document

A Guide to the Rulemaking Process

March 7, March 12, and March 14

These classes will be covered with online materials done asynchronously – which means that you can read the materials, listen to the presentations, and work the quizzes on your own time frame. You do not need to log in during what would have been the class period. The quizzes count toward class participation points but are not a separate component of the final exam.  I will start posting the materials next week and I can strongly recommend that you not wait until the last minute to work through them.

March 5

No class! Happy Mardi Gras!

February 28

News

How transmission helped keep the lights on during the Polar Vortex

Coal and nuclear plants shut down at a higher rate than wind during the polar vortex.

Munich Re, TOPICS Geo Natural catastrophes 2017

Assignment

Juliana – Government’s motion for mandamus

Team 1

INTRODUCTION AND RELIEF SOUGHT ………………………………………………………… 1
STATEMENT OF JURISDICTION ……………………………………………………………………….. 3
STATEMENT OF THE ISSUE ……………………………………………………………………………….. 3
STATEMENT OF RELEVANT FACTS …………………………………………………………………. 3
STANDARD OF REVIEW ……………………………………………………………………………………… 8

Team 2

REASON FOR GRANTING THE WRIT …………………………………………………………….. 10
I. The district court’s order denying the motion to dismiss is based on
clear error ……………………………………………………………………………………………. 10
A. The district court clearly erred by finding that plaintiffs adequately
alleged standing based on vague and attenuated allegations of
injury, causation and redressability ……………………………………………. 11
1. Plaintiffs did not allege a cognizable injury that is
particularized and concrete …………………………………………….. 13
2. Plaintiffs failed to adequately allege causation ………………… 15
3. Plaintiffs failed to adequately allege redressability …………… 19
B. The district court clearly erred by allowing plaintiffs to proceed
on their claim of a fundamental right under the due process
clause ………………………………………………………………………………………… 21
1. There is no basis in law for a due process right to a
particular climate system ………………………………………………… 22
2. Plaintiffs failed to identify any cause of action for their
claims ……………………………………………………………………………… 26
iii
C. The district court clearly erred in holding that plaintiffs stated on
actionable “public trust” claim against the federal government … 28

Team 3

II. Mandamus is warranted to confine the district court to the lawful
exercise of its jurisdiction ……………………………………………………………………. 31
III. Defendants have no other means of obtaining immediate review needed
to avoid a serious intrusion on the separation of powers, and without
action by this court the defendants will be prejudiced in a way not
correctable on appeal …………………………………………………………………………… 32
IV. The order raises new and important problems and issues of first
impression …………………………………………………………………………………………… 37
V. A stay of proceedings is warranted ……………………………………………………… 38
CONCLUSION ………………………………………………………………………………………………………. 40

9th Circuit rejection of the government’s motion for mandamus

Team 4

February 26

News

Propagation of bad science:

Raw water: the unsterilised health craze that could give you diarrhoea

Anti-vaxx propaganda has gone viral on Facebook. Pinterest has a cure

Assignment

See additional short assignment on Moodle.

I have prepared a detailed review guide to the district court order in Juliana. Teams 1-3 should use this to make sure that they clearly argue the points that the court deals with in its order. Team 4 does not need to address every point but should use this to check that they have identified the key issues.

Juliana – Oregon Children – Dist Court Order – Study Guide

Each team should prepare any presentation materials it deems useful to make its arguments. Take as much time as you need, we can spread this over more than one class.

Our teams will begin the discussion of Juliana v. United States, the Children’s Climate Case

Team One – argue the plaintiff’s standing case from the First Amended Complaint

Team Two – argue the plaintiff’s  claims for relief from the First Amended Complaint

Team Three – Argue for dismissal of plaintiff’s First Amended Complaint based on the Federal Defendant’s First Motion to Dismiss.

Team Four – Present the district court’s findings on standing and the plaintiff’s claims for relief.

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.

Juliana v. United States, No. 6:15-CV-01517-TC, 2016 WL 6661146 (D. Or. Nov. 10, 2016) – PDF

Resources

Children’s Trust WWW Site

February 21

News

‘Moment of reckoning’: US cities burn recyclables after China bans imports

White House prepares to scrutinize intelligence agencies’ finding that climate change threatens national security

Enforcement of Montreal Protocol through the CAA – United States v. Trident Seafoods Corp. , W.D. Wash., No. 19-cv-00231

Defendants Trident Seafoods Corporation (“Trident”), Royal Viking, Inc., and Golden Dawn, LLC (collectively, “Defendants”) own and/or operate fishing and seafood processing vessels off the coast of Alaska and the Pacific Northwest, and Trident owns and operates seafood processing and cold storage facilities and vessels throughout Alaska and the continental United States. Defendant Trident’s facilities and Defendants’ vessels employ refrigeration appliances that use an ozone-depleting Refrigerant gas known as chlorodifluoromethane or HCFC-22, also known as R-22. As alleged herein, Defendants failed to comply with Title VI of the Clean Air Act (“Stratospheric Ozone Protection”), 42 U.S.C. §§ 7671-7671q, and the regulations set forth in 40 C.F.R. Part 82, Subpart F, because they failed to repair and test leaking refrigeration appliances, failed to maintain adequate records and equipment, and used uncertified technicians to service refrigeration appliances.

Assignment

Paris Climate Agreement – background information

The Paris Agreement Summary

Concentrate on these two and the slides – Slides: Overview of the Paris Agreement

Resources

Paris Climate Agreement – Official Text

Kyoto Protocol

February 19

News

Will Trump Kill the Montreal Agreement?

Assignment

The Montreal Protocol is perhaps the only successful international environmental law treaty. While not intended as a climate treaty, it has proven to be the first effective climate treaty as well. We are doing to study it before we look at the Paris Agreement to see if why the Montreal Protocol works, and whether it can be generalized or whether it is a unique case.

Technical background

You have seen these before. They are either short or you only need to scan them as background for the discussion

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)

This is the first paper describing the problem. Just scan this as background. It is notable for how quickly the world responded.

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

A 5 minute overview of the CFC problem.

Chlorofluorocarbons and Ozone Depletion – A National Historic Chemical Landmark

Additional non-technical background information on the treaty.

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

The impact of the treaty on ozone.

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.

Just look at the abstract.

The Montreal Protocol

Summary – Montreal Protocol on Substances that Deplete the Ozone Layer

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

Key provisions to understand:

How does the Protocol resolve the conflict between developed and developing nations?

What is the purpose of the Multilateral Fund? Who provides the money?

How is Protocol structured to allow it to evolve through time?

Resources

Montreal Protocol – working

 

February 14

Assignment

Rather than just critiquing the Green New Deal, think about what a proper House resolution should contain. What do you think would better a better pitch to gain public support, as opposed to targeting the party activists who dominate the primary process.

When we finish the discussion, we will return to treaty and executive agreement basics.

Slides – Treaty and International Law Basics

February 12

News

Washington measles outbreak draws crowd to hearing on vaccine law (opposition to the law)

https://www.washingtonpost.com/health/2019/02/08/washington-measles-outbreak-draws-crowd-hearing-vaccine-law/

Climate Change Could Leave Thousands of Lakes Ice-Free

https://www.nytimes.com/interactive/2019/02/05/climate/melting-lake-ice-global-warming.html

Assignment

The Green New Deal is heating up. Add these materials to your Green New Deal materials from last class.

Rep. Alexandria Ocasio-Cortez Releases Green New Deal Outline

House Resolution: Recognizing the duty of the Federal Government to create a Green New Deal.

New – The Green New Deal and Sprawl

This is a more fleshed out proposal in the form of a House Resolution. Read it carefully. We want to talk about whether it makes sense, whether the timeframe is realistic, whether mixing social justice issues – however important – with climate issues is good politics, and what it means that it is deliberately vague on nuclear.

Pro and con opinions on the politics of the green new deal:

‘We’re nuts!’ isn’t a great pitch for a Green New Deal

The Green New Deal Rises Again

Think about this quote from inside the article:

“Like so much of the American left, the environmental movement has become acclimated to the notion that it is operating outside the mainstream, knocking sheepishly on the door. Its rallying cry might as well be, ‘If it’s not too much trouble. …’”

From Wired

To be fair and balanced, the Fox view:

https://www.foxnews.com/politics/wsj-writer-slams-ocasio-cortezs-green-new-deal-says-it-looks-like-dem-parody-bill-written-by-gop

https://www.foxnews.com/opinion/mark-penn-green-new-deal-has-more-in-common-with-maos-cultural-revolution-than-fdrs-new-deal

We will round out the class as time permits with my introduction to international agreements. We will carry the Montreal Protocol materials over the next class.

Slides – Treaty and International Law Basics

February 7

News

First congressional hearings on climate change in 8 years

Democrats Formally Call for a Green New Deal, Giving Substance to a Rallying Cry https://nyti.ms/2DY7q1Q

2018 was 4th hottest year on record for the globe

Another front in the war against science – vaccinations

While there is some overlap between anti-vaccine groups and anti-climate groups, there are also significant numbers of climate believers who are anti-vaccine.

Assignment

Discuss a pragmatic view of adaption to climate change – risks and opportunities.

An overview of the Green New Deal and its politics.

Think about the timelines. The Clean Water Act, passed in 1972, set a deadline of 1983 to clean up all the waters of the United States. (While exempting about 50% of emissions.)

What about social justice issues? Are these in conflict with climate issues?

Proposed Legislation – Establishment of the Select Committee For A Green New Deal.

Review the details of this proposed legislation so we can discuss it in class.

 

February 5

News

When Does the Windy City Lose Wind Power? During a Polar Vortex

Assignment

We are going to start the class with a somewhat upbeat discussion of living with climate change to try to put the impact of climate change into personal terms for folks such as law students.

Then we are going to begin looking at the pathways to decarbonization, i.e., what we have to do to reduce GHGs to manageable levels. This will set up the discussion of the Green New Deal and the legal tools necessary to achieve meaningful decarbonization. This is a fairly long read, although it is not very technical. The key takeaways are what needs to happen in different sectors of the economy to get to decarbonization.

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).

Resources

Slides – Pathways to deep decarbonization in the United States

January 31

News

NOAA – Polar Vortex

Assignment

Climate Change 2014 Synthesis Report – Fifth Assessment Report – Read pp. 2-31

This is the 2014 report for policymakers, i.e., not scientists. We will read the summary.

Resources

IPCC 2014 Syn Report – Graphics

January 29

News

Brace for the Polar Vortex; It May Be Visiting More Often https://nyti.ms/2RTztHO

Gone in a generation: Across America, climate change is already disrupting lives.

Class

First, we will discuss lose ends from last class.

NASA | The Ocean: A Driving Force for Weather and Climate

Knowing the ocean’s twists and turns

Ocean Currents

Ocean Currents

Atlantic Meridional Overturning Circulation (AMOC)

World Meteorological Organization Climate Definitions

National Climate Assessment – Extreme Weather

Then learn about the IPCC. This is the key international scientific organization on climate science.

Assignment

Start here:

About the IPCC
Read more »

January 24

Continue discussion from last class.

State of Louisiana—Highlighting Low-Lying Areas Derived from USGS Digital Elevation Data By John J. Kosovich 2008

January 22

Assignment

A little more climate science and a look at the last few million years in Louisiana.

Reading: John McPhee, Atchafalaya, New Yorker (1987)

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 fascinating and very well written.
Read more »

January 17

News

GAO – Activities of Selected Agencies to Address Potential Impact on Global Migration

Assignment

I will do a basic introduction to climate science and global warming. This will not be a discussion class, but I want you to ask questions as I go to make sure you understand the basics.
Read more »

January 15

Class Information

All the assignments will be posted on this blog. Check before class for breaking news updates

Class participation counts toward the final grade.
Read more »