Climate Change Law and Policy Project

Public Trust Guiding Principles and Action Plan: Carrying out the California Coastal Act and Public Trust Doctrine in an era of climate crisis and sea level rise (June 2022)

Carter, Nicole T., and Eva Lipiec. Flood Risk Reduction From Natural and Nature-Based Features: Army Corps of Engineers Authorities. Washington, DC: Congressional Research Service, 2020.

Risa Palm, Georgia State University and Toby W. Bolsen, Georgia State University

Oil Embargo, 1973–1974

Oil Shock of 1978–79

The myth of US ‘energy independence’

Campo v. United States, No. 20-44, 2021 WL 6102151 (Fed. Cl. Dec. 23, 2021)

[For a good discussion of the Louisiana law on property interests in oyster leases, see: John J. Costonis, Avenal v. State: Takings and Damagings in Louisiana, 65 La. L. Rev. (2005)]

Just handed down by the Court of Federal Claims. Denial of SJ on plaintiffs’ claims that the Corps took their property by operating the Bonne Carre spillway. The state SC kicked the same type of claims some years ago because they only lease the land from the state and the lease makes it clear that they do not have a continuing property interest.

“In his 1690 Second Treatise of Government, John Locke famously noted “the labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.” Over 300 years later, this case raises the unique legal issue of whether Louisiana oyster growers may claim property rights in the fruits of their labor-oysters.

Plaintiff oyster farmers allege the United States deprived them of use, occupancy and enjoyment of their personal oyster stock and real property (oyster beds and reefs). The farmers allege the government actions resulted in a permanent taking of their property for a public use without payment of just compensation in violation of the Takings Clause of the United States Constitution. The government admits when plaintiffs sell oysters they are “paid for the fruits of [their] effort,” and plaintiffs may assert rights to exclude, destroy, use, possess, recover for larceny, alienate, sue third parties for damages, and enjoy the fruits of selling oysters. Despite acknowledging those rights, the government moves to dismiss the portion of plaintiffs’ claim alleging a taking of the oysters; the government argues plaintiff farmers lack a compensable property right in the oysters. For myriad reasons detailed infra, under Louisiana precedent, federal common law, and Lockean labor theory, plaintiffs undoubtedly have compensable property rights in their oysters. Accordingly, the Court DENIES the government’s motion to dismiss in part pursuant to Rule 12(b)(6) of the Court of Federal Claims.”

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This is a climate case based on public nuisance and misrepresentation. Defendants removed to federal court under the federal officer statute and the Circuit sent it back. Defendants appealed to the USSC, which accepted cert. and rule that when the federal officer statute was triggered, the appeals court had a duty to remand to consider all grounds for removal.

Lower court

Scotus Blog Docket

Scotus Blog – Case preview: Justices to consider procedural issue in major climate-change lawsuit

Oyez

FEMA Strategic Plan 2014–2018 – Obama Administration, mentions climate 8 times.

FEMA Strategic Plan 2018–2033 – Trump Administration, mentions climate 0 times.

FEMA Strategic Plan 2022–2618 – Biden Administration, mentions climate 93 times.

Office, U.S.G.A., on Transportation, U.S.C.H.C. & Infrastructure, 2005. Wetlands Protection: Corps of Engineers Does Not Have an Effective Oversight Approach to Ensure that Compensatory Mitigation is Occurring: Report to the Ranking Democratic Member, Committee on Transportation and Infrastructure, House of Representatives, GAO.

Braun, K.N. & Theuerkauf, E.J., 2021. The role of short-term and long-term water level and wave variability in coastal carbon budgets. Iscience, 24(5), p.102382.

Burgin, S., 2010. “Mitigation banks” for wetland conservation: a major success or an unmitigated disaster? Wetlands ecology and management, 18(1), pp.49–55.

Newling, C.J., Landin, M.C. & others, 1985. Long-term monitoring of habitat development at upland and wetland dredged material disposal sites, 1974-1982.

Kusler, J. & Kentula, M., 1989. Wetland creation and restoration: the status of the science. v. 1. Regional reviews-v. 2. Perspectives. EPA-600/3-(USA). no. 89/038a-b.

Alagood, R.K., 2016. The Mythology of Mitigation Banking. Environmental Law Reporter, 46, pp.10200–10207.

Turner, R.E., Redmond, A.M. & Zedler, J.B., 2001. Count it by acre or function—mitigation adds up to net loss of wetlands. National Wetlands Newsletter, 23(6), pp.5–6.

Boyer, M.E., 1997. The effect of long-term marsh management on land-loss rates in coastal Louisiana. Environmental Management, 21(1), pp.97–104.

See also: River Diversion Research Articles

The official site: Mid-Barataria Sediment Diversion (MBSD) DRAFT Environmental Impact Statement Released for Public Review and Comment

Note – in order to make it more difficult for reporters and others to use the files, they are published with all of the security settings enabled so that they can only be printed. You cannot copy text out of the files for articles or analysis without loading them into a PDF manager such as Qiqqa.

I have collected all of the Draft EIS documents and indexed them with Acrobat. You can download the collection as a zip file here:

https://biotech.law.lsu.edu/climate/docs/eis.zip

The file is about 688 megs. Unzip this into a subdirectory. You will get the EIS files plus the index files.  One file is named MBSD Index.pdx If you open this file in Acrobat or Acrobat reader, it allows you to search all of the files and then page through them to see the search terms in context.

Environmental Justice Issues

US Army Corps of Engineers – 2021 – Draft EIS for the Proposed MBSD Project- Chapter 4 – Environmental Consequences

The environmental justice review starts at p. 615

McCall, Grant S., and Russell D. Greaves. “Creating a Diversion: Why the Mid-Barataria Sediment Diversion (MBSD) Project Is Unpopular Among Coastal Communities in Southeast Louisiana.” Marine Technology Society Journal 56.3 (2022): 67-83.

Reference Documents

Petition Requesting That The Federal Emergency Management Agency Amend Its Regulations Implementing the National Flood Insurance Program

I. Introduction

Flooding poses a significant threat to life and property and is the most common natural hazard in the United States. Since 1973, the National Flood Insurance Program (NFIP) has paid more than $69 billion in flood insurance claims, half of which have occurred in the last 12 years. Further, the risk of flooding is increasing due to climate change impacts, like sea level rise and changing precipitation patterns, and increased development in the nation’s floodplains. As atmospheric greenhouse gas concentrations continue to rise, flood risk will continue to increase, presenting grave challenges to our nation’s cities, towns, and neighborhoods when floods strike.