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Tracy Hester
Climate Change Law
LAW 5397
Fall 2018



LAW 5397

Fall 2018
Room TUII 117



No. Date Topics Guest Speaker(s) Readings Background Optional Materials and Comments
1. Aug. 20, 2018

Introduction - Orientation and Overview

Climate Science - background


EPA Greenhouse Gas Emission Mapping System (just explore; we'll use it in class)

Executive Summary of Fourth National Climate Assessment Report (2017)

Lecture (video and audio)

Mauna Kea CO2 cumulative monitoring data
2. Aug. 22, 2018 Climate change belief and cultural cognition  

D. Kahan et al, Cultural Cognition of Scientific Consensus, Journal of Risk Research (2013)

Lecture (audio)

Climate Change in Context

Class PowerPoint

Climate Literacy Graph

J. Schmandt (ed.), The Impact of Global Warming on Texas, chap. 10 (Policy Options) (June 2011)

D. Kahan et al. (2015) Climate Science Communication and the Measurement Problem

Stephen Colbert on Ban on Use of Phrase "Climate Change"

John Oliver on Climate Change Debate

Melting the Polarization Around Climate Change Politics, Cal Jaffe (2018)

2. Aug. 27, 2018

Guest lecture - climate science

Special lecture by Dr. John Nielson-Gammon

Class will meet at noon rather than our regular time.


Lecture (audio)

We will meet in our usual class room (TUII 111).

3. Aug. 29, 2018

Responding to Climate Change: Mitigation and Adaptation



McKinsey GHG Cost Abatement Curve (see page 8)

R. Socolow, Wedges Reaffirmed,, Bulletin of the Atomic Scientists (Sept. 27, 2011)

Climate Change Reduction Interactive Feature by The New York Times

Lecture (audio)

Executive Summary of N. Stern, The Economics of Climate Change (2006)

Texas No-Regrets Strategies Report (2010)

Stabilization Wedges Game (2015)

4. Sept. 3, 2018





5. Sept. 5, 2018 Clean Air Act: Overview and EPA Authority to Regulate Greenhouse Gas Emissions


Massachusetts v. EPA

Lecture (audio)

Plain English Guide to the Clean Air Act

Clean Air Act text

Endangerment Finding

6. Sept. 10, 2018

Climate Change and the Clean Air Act - PSD Permits, NSPS Standards, and Netting/Offsets



Lecture (audio)

Final Clean Power Plan rule for NSPS (pp. 64510-64516 only)

Final Clean Power Plan rule for ESPS (pp. 64666 ["Main Elements"] to 64682)

7. Sept. 12, 2018 Climate Change and the Clean Air Act - PSD Permits, NSPS Standards, and Netting/Offsets (cont'd)  

Proposed Rule to Withdraw the Clean Power Plan

Affordable Clean Energy proposed rule and legal overview

GHG Permitting Example

Lecture (audio)

H.B. 788 (2013)

Executive Summary of Rules to Implement H.B. 788

Texas and the Clean Power Plan Fact Sheet

  Sept. 14, 2018 SPECIAL WORKSHOP: Negative Emissions Technologies and the Energy Industry      
8. Sept. 17, 2018 Climate Change and the National Environmental Policy Act  

CEQ Guidance on Consideration of GHG Effects and Climate Change in NEPA Reviews (2016)

Presidential Executive Order Promoting Energy Independence and Economic Growth (March 28, 2017)

Sierra Club v. FERC

Lecture (audio)

NAS Report on Social Cost of Carbon

Allegheny Defense Project v. FERC Emergency Motion for Stay (10/30/17)

9. Sept. 19, 2018 Climate Change and CERCLA/RCRA

Special class - joint session with Pace University School of Law and U of Maryland Law

Class will meet from 1pm to 3 pm in TUII 117. Lunch or snacks will be provided.

Superfund and Climate Change

OSWER Climate Change Adaptation Implementation Plan

EPA Fact Sheet re landfills and climate change

Testimony to Senate Subcommittee hearing on Disaster Response and Climate Change and questions

Act of God Defenses and Climate Change by Prof. Cliff Villa

PowerPoint (.pdf)

Villa PowerPoint (.pdf)

Lecture (audio) - due to technical difficulties, this session was not videorecorded.


10. Sept. 24, 2018 Climate Change and the Endangered Species Act  

Letter from Robert Moyer to Dale Hall re Section 7 GHG consultation (2008)

Alaska Oil & Gas Assn v. Pritzker

PowerPoint (.pdf)

Lecture (audio)

Proposed revisions to ESA regulations under Sections 4, 4d, and 7 (July 28, 2018).

11. Sept. 26, 2018 Climate Change and the Clean Water Act  

Dealing with Ocean Acidification by R. Craig (2016), pp. 387-419, 466-470

Conservation Law Foundation v. ExxonMobil complaint (D. Mass. 2016) (skim)

Notice of intent to sue by Center for Biological Diversity to EPA for failure to identify Oregon coastal waters as impaired by acidification (Aug. 18, 2018)

Lecture (audio)

Integrated Reporting and Listing Decisions Related to Ocean Acidification, EPA (Nov. 2010)

Columbia Riverkeeper v. Pruitt Motion for Summary Judgment (8/30/17, W.D. Wash.)

EPA Rule on TSCA Petition re Ocean Acidification

12. Oct. 1, 2018

Regional Initiatives -- RGGI, WCI and compacts

State and local initiatives -- California, NY, Houston

State climate change laws and permitting


Climate Change and Federalism from Climate Change Law by Dan Farber (2018)

California Faces Big Hurdles to Meet Lofty Carbon-Neutral Goal (Sept. 12, 2018)

Guest lecturer: Gavin Dillingham, Houston Advanced Research Center, re Houston's climate resiliency plan

City of Houston's Climate Action Plan

Lecture (audio)

California Executive Order B-55-18 (Sept. 10, 2018)

State Renewable Portfolio Standards and Goals by National Conference of State Legislatures (July 20, 2018)

State and Regional Responses to Climate Change, Wold et al., Climate Change and the Law (2013) - pages 1-37

DEIS for Auto Effficiency Standards - GHG Impacts (2018)


Oct. 3, 2018 Carbon taxation


GUEST LECTURE: former U.S. Rep. Bob Ingliss on carbon taxation as a conservative strategy to control climate change, UH Hilton, 6 pm. Attendance not mandatory, but strongly recommended that you attend and take advantage of this opportunity.


14. Oct. 8, 2018

U.S. tort liability for climate change: state law; public trust doctrine


American Electric Power v. Connecticut

Comer v. Murphy Oil Co. panel opinion (5th Cir.)

Alec L v. Jackson Memorandum in Support of Motion to Dismiss by United States

San Mateo County v. Chevron (complaint) - just skim for general nature of claims and requested relief

PowerPoint (.pdf)

Lecture (audio)

Comer v. Murphy Oil USA, Inc. (district court decision on re-filing)

Kivalina v. ExxonMobil district court; Ninth Circuit ruling

U.S. Litigation Tracking Chart

Rise in global atmospheric CO2, surface temperature, and sea level from emissions traced to major carbon producers by Ekwurzel et al (2017).

15. Oct. 10, 2018 Practical perspectives and strategies of climate change litigation Guest speaker: Jenn Barks, Kelley Drye & Warren

No readings assigned yet by speaker

Lecture was not recorded

Global Warming of 1.5 Degrees, IPCC Report (10/7/18)

Juliana v. US complaint, MSJ, MSJ Response, and SCOTUS denial of stay

City of Oakland v. BP PLC complaint and MTD

16. Oct. 15, 2018 International Law: Basic Principles, and the road to the UN Framework Conventional on Climate Change (UNFCCC)  

Excerpts from Louis Henkin, Foreign Affairs and the United States Constitution (1998)

International Law Whiteboard Chart

Lecture (audio 1 and 2)


17. Oct. 17, 2018 International Law: the UNFCCC; Kyoto Protocol  

Powerpoint (.pdf)

Full text of U.N. Framework Convention on Climate Change (focus only on portions that we discuss in class)

Lecture (audio)

Full text of Kyoto Protocol (as on-line reference)

18. Oct. 22, 2018 The Paris Agreement and Next Steps  

Paris Agreement final text

Paris Agreement whiteboard

Lecture (audio)

U.S. Initial Nationally Determined Contribution
19. Oct. 24, 2018 Climate Change COP 24 Simulation  

Contact list of delegates

Climate Negotiation Exercise

Draft Negotation Principles Document

General Issues in Elaborating the Paris Rulebook, by Dan Bodansky and Lavanya Rajamani

Negotiations (audio)

20. Oct. 29, 2018

International law - international human rights and climate change law


Human Rights Principles and Climate Change by John Knox

The State of Netherlands v. Urgenda Foundation (Oct. 9, 2018) (skim for discussions of ECHR Arts. 2 and 8)

Lecture (audio)

Petition to the Inter-American Commission on Human Rights Seeking Relief From Violations Resuling From Global Warming Caused by Acts and Omissions of the United States (Dec. 7, 2005)

Animal Legal Defense Fund v. United States, Complaint (D. Ore. filed 10/22/18)

Statement of UN Special Rapporteur on Human Rights and Environment re Friends of Irish Environment proceeding (Oct. 25, 2018)

21. Oct. 31, 2018 Transnational lawsuits and arbitrations (in both domestic and international fora)  

Compliance and Dispute Settlement in Multinational Agreements -- focus on pp. 322-333

Transnational Liability in U.S. Courts for Environmental Harms Abroad (2018)

Transnational Enforcement PowerPoint (.pdf)

Lecture (audio)

Gbemre v. Shell (High Court of Nigeria, Nov. 14, 2005)

22. Nov. 5, 2018 International Trade and Climate Change


Trade Considerations for Decarbonization Strategies (draft), Prof. Elizabeth Trujillo (2018)

US-Mexico-Canada proposed trade agreement

Trade and Climate Whiteboard
(clean version)

Lecture (audio)

23. Nov. 7, 2018 Comparative Climate Change Law GUEST SPEAKER:  Alexis Andres, General Counsel of France (Houston)

Current NDCs for China (English translation begins on p. 17); India; Brazil; and Canada

NDC for European Union and Supplemental Statement from France

R. Lord ed., Climate Change Liability: Transnational Law and Practice (2012) (chapter on India)

Osofsky - only the discussion of China, Canada and Brazil.

Class photo with speaker

Lecture (audio)

T. Hester, Private Claims for a Global Climate: U.S. and Indian Litigation Approaches to Climate Change and Environmental Harm (July 2011)
24. Nov. 12, 2018 Climate engineering and other technology-based proposals


Remaking the World to Save It, T. Hester (2011) (skim)

PowerPoint (.pdf)

Lecture (audio)

H. 6001 (Rhode Island 2017)

SPICE Opposition Letter

Scientists' Letter to House Space Science and Technology Subcommittee re Geoengineering (Nov. 8, 2017)

The Law of Direct Air Capture by Hester (2018)

Stratospheric controlled
perturbation experiment
a small-scale experiment to
improve understanding of the
risks of solar geoengineering by Dykema, Keith, etc (2014)

25. Nov. 14, 2018

Role of non-governmental organizations and corporate initiatives; voluntary commitments and actions; disclosure-based initiatives; social cost of carbon

GUEST SPEAKER:  Margaret Peloso and Sarah Fortt, Vinson & Elkins

SEC Guidance on Climate Change Disclosure

NY v. Exxon Corp. summons and complaint (Oct. 24, 2018) (skim)

Attia v. Exxon (S.D. Tex. 2017) (skim only)

Powerpoint (.pdf)

Lecture (audio)

Unburnable Carbon (CERES Report, 2013)

Inadequate Carbon Risk Disclosure by Oil & Gas Companies, letter from CERES to SEC (April 17, 2015)

Sample carbon disclosure request letter (CERES, Sept. 9, 2013)

Assessing Exxon Climate Change Communications by Supran (2017)

In the Matter of Investigation by Eric Schneiderman into Peabody Energy Corporation, Assurance of Discontinuance (Nov. 8, 2015)

23. Nov. 19, 2018

Voluntary Review

Emerging issues: climate bankruptcy and corporate restructuring; climate disobedience and necessity defense


Final exam sample question and instructions

Lecture (audio)


Pacific Coast Federation of Fishermen's Associations v Chevron (Superior Ct. Cal. - San Francisco) (complaint filed 11/14/18)

In re Peabody Coal (E.D.Mo.-bankruptcy) (10/24/17)

Surprise Acquittal in Pipeline Protesters' Case (MPR News, 10/9/18)

Note - cover sheet for sample exam includes rules for take-home exams









  Nov. 29 - Dec. 12, 2018

Final Exam - 8-hour take-home examination. You can check out the exam online starting at 9:00 am on Thursday, Nov. 29, and you must submit your exam answers by 5:00 p.m. on Dec. 12. You will have only eight (8) hours to complete your exam once you check it out online.

Please send me any email queries by Nov. 27 at noon - I will compile responses and distribute before the exam period opens on Nov. 29.

  Final review email questions