TOOLKIT FOR INTEGRATING CLIMATE CHANGE INTO TEN HIGH-ENROLLMENT LAW SCHOOL COURSES.

Author:Lavey, Warren G.
 
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  1. INTRODUCTION 515 II. REASONS FOR INTEGRATING CLIMATE CHANGE INTO THE CURRICULUM OF MANY LAW COURSES 516 III. CLIMATE-RELATED CASES AND OTHER MATERIALS FOR TEN MAJOR LAW SCHOOL COURSES 522 A. Contracts 523 1. Contracts Case Involving New State Law Limiting Emissions and Pricing Allowances 524 2. Contracts Case Involving New Municipal Ordinance that Restricted Use of Property in Transporting Fossil Fuels 527 B. Property 531 1. Property Boundaries Cases in Eroding Coastal Areas 2. Takings Easement Case from Flooding Along Government-Built Channel 536 C. Torts 540 1. New York City Claims Against Fossil Fuels Companies for Nuisance and Trespass 540 D. Civil Procedure 545 1. Summary Judgment 545 2. Declaratory Relief, Judgment on the Pleadings, and Appellate Review 547 3. Removal of State Law Claims to Federal Courts 548 E. Constitutional 550 1. Fundamental Rights 551 2. Dormant Commerce Clause Issues for State Programs 555 F. Business Associations and Securities 557 1. Federal Securities Guidance 558 2. State Securities Actions 560 G. Tax 562 1. Carbon Taxes 563 2. Fee Not Treated as Tax 566 H. Administrative 568 1. Standing/Statutory Interpretation/Judicial Review 568 2. Statutory Displacement of Federal Common Law 571 3. Cost/Benefit Analysis Reflecting GHG Emissions 572 I. Land Use Planning 574 1. Zoning for Wind and Solar Farms 574 2. Assessing Projects' GHG Emissions in Permitting 575 J. International Law 578 1. Process for Joining and Withdrawing 579 2. Nationally Determined Contributions 580 3. Green Climate Fund 580 4. Technology Transfer 581 IV. ACTIONS FOR ENVIRONMENTAL LAW PROFESSORS AND PRACTITIONERS TO MOVE FORWARD ON INTEGRATING CLIMATE CASES INTO COURSES 584 V. CONCLUSION 586 I. INTRODUCTION

    The American Bar Association (ABA) in 2003 recognized that addressing climate change (1) and other sustainable development (2) challenges requires understanding, developing, and applying legal mechanisms that are cross-functional and integrate a variety of legal specialties. (3) A 2015 report by an ABA task force observed that sustainability "is a growing part of law practice... in virtually every practice area" that "involves a wide range of knowledge and skills." (4) By 2019, climate change impacts, mitigation actions, and adaptation programs pervaded many areas of legal practice. Effective lawyering requires understanding threats from changing environmental conditions and laws, navigating complex regulatory mechanisms, developing innovative transactions and litigations, guiding corporations in considering and disclosing climate-related measures and risks, planning land uses for resiliency and lower emissions, and other activities demanding knowledge and skills absent from most law courses.

    Although clients demand more climate-related capabilities from many lawyers across practice areas, most graduating law students are unprepared for these professional responsibilities. Climate-related laws, regulations, and cases appear in environmental and natural resources law courses and are the focus of seminars in some schools. Yet, these offerings reach relatively few law students. When a climate-related case is included in other courses, it is usually presented without much teaching on climate change and its impacts. The many students who intend to practice in fields other than environmental law fail to recognize that their work will require these competencies. Most law courses are taught by professors who trained before climate change became so important to practicing law, and these instructors do not follow such developments, which they mistakenly characterize as solely the province of specialized environmental lawyers.

    This Article addresses the climate-competency shortfall in legal education in three parts. Part II explains the reasons for integrating climate change into the curriculum of many law courses. It describes the need for climate-aware lawyers in many practice areas as well as lawyers' ethical responsibilities to provide services in climate change mitigation and adaptation. Part III has ten subparts that are organized by course subject, present climate-related cases and other materials that could be used to teach fundamental competencies in these subjects, explain how these materials could inform students on important climate-related legal developments, and propose questions to guide students in these readings and class discussions. The ten courses covered (with more possible) are contracts, property, torts, civil procedure, constitutional, business associations and securities, tax, administrative, land-use planning, and international law. Part IV appeals to environmental law professors and practitioners to take the initiative in working with other faculty to integrate climate change into these courses. While all faculty should be supportive and collaborative, many environmental lawyers are competent with the climate resources, are aware of interesting recent developments in climate cases and laws, see the relevance across a range of practice areas, and could team-teach with or help prepare the professors teaching these courses.

  2. REASONS FOR INTEGRATING CLIMATE CHANGE INTO THE CURRICULUM OF MANY LAW COURSES

    Work related to climate change is not reserved to atmospheric scientists, geologists, botanists, emergency responders, civil engineers, and urban planning professionals. Rather, like professionals in healthcare, insurance, finance, real estate, energy, accounting, social work, and other fields, lawyers practicing in many areas require knowledge and skills related to climate change. (5) Furthermore, the impacts of climate change on practicing law are not limited to the small number of lawyers engaged in headline-grabbing climate activities, such as filing claims for payments after natural disasters with the Federal Emergency Management Agency (FEMA) or National Flood Insurance Program (NFIP), drafting agreements to coordinate government agencies for emergency responses to heatwaves, acquiring property to resettle people from low-lying Pacific islands displaced by rising sea levels, or obtaining authorizations for export and delivery of food to Sub-Saharan African areas suffering from drought. Instead, climate change has been affecting a wide range of cases, agreements, plans, laws, regulations, and legal counseling in the United States for many years. (6) Unfortunately, this influence will continue to grow amidst increasingly complex legal frameworks and threatening environmental conditions. Accordingly, students need training for competency to practice law in the world of climate change.

    In many resolutions and reports going back to a commitment to sustainable development in 1991, (7) the ABA pointed to broad engagement of lawyers and law school courses in matters related to climate change. In 2008, the ABA House of Delegates noted that "climate change presents significant" environmental as well as security, economic, and social "risks to this and future generations." (8) Importantly, the ABA recognized current and widespread impacts from climate change--demands for services by lawyers with climate competencies are not limited to the projected worsened conditions in 2100 or 2050. (9) Five years later, the ABA House of Delegates recommended reforms to legal education to address climate change and other challenges "to help promote a better understanding of the principles of sustainable development in relevant fields of law." (10)

    This resolution led to a 2015 report by the ABA's Task Force on Sustainable Development, which observed the need to improve training of lawyers throughout practice areas:

    Sustainability is a growing part of law practice, and in virtually every practice area. Sustainability is affecting, or will affect, tax law, insurance, banking, finance, real estate development, environmental and energy law, among other fields. It also involves a wide range of knowledge and skills, including litigation, commercial transactions, client counseling, advocacy before governmental agencies and other bodies, and legislative drafting. ... [F]irms and other law organizations have a growing recognition that sustainability requires lawyers to have the requisite knowledge and skills. Many lawyers are concluding that the lack of sustainable development knowledge and skills means they will not be able to provide clients with all of the services that clients need. (11) According to this ABA Task Force, not only are legal issues, disputes, and problems "increasingly framed by sustainability concepts and objectives," (12) but also sustainability challenges mean that new "tools, processes and institutions are increasingly needed, and legal issues arise across the board as they emerge or evolve." (13)

    As examples of clients' demands for climate-related legal skills, wind and solar power systems (which produce electricity without emitting greenhouse gases (GHGs)) are surging around the nation, aided by federal, state and local laws providing production tax credits, renewable energy portfolio standards, property assessed clean energy, and zoning for rooftop solar, wind turbines and community solar farms; (14) with increasing flooding from severe storms and sea level rise affecting most states (in 2017, NFIP paid $8.7 billion for losses), (15) governments nationwide are installing natural and artificial defenses using acquired properties and easements along coasts and rivers, expanding stormwater systems, and revising floodplain maps and building codes; (16) hundreds of U.S. corporations publicly report their GHG emissions and actions to reduce them, and are increasingly disclosing their vulnerabilities to climate change in securities filings; (17) ten states apply market-based (cap-and-trade) programs to reduce GHG emissions from coal and natural gas electricity power plants and some other sources, with auctions and trading in credits; (18) cities, counties, and states on the West and East...

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