This past weekend, I attended the 13th Annual Tulane Law School Environmental Conference on Law, Science & the Public Interest, known in short-hand as the Tulane Environmental Law Conference. I will commence this week’s posts (and probably continue throughout the week), with the first of what will be a semi-regular feature on this blawg, a sort-of “What I Did On Summer Vacation” style of discussion of what interesting things happened and were presented at the CLE seminar. I get the CLE credits, but you can share in what went on and what was learned.

First, a little self-disclosure: I was the student coordinator for this conference back in 2000. Nevertheless, I never remember it being this fantastic. The speaker panels and keynote events were studded with nationally prominent movers and shakers in the fields of environmental law, environmental policy, and environmental science. The audience was also populated by luminaries in the field, and it made for tremendously engaging discussions. This year’s theme for the conference was “Climate Change: In the Community and the Courtroom.”

The first panel that particularly piqued my interest was a panel reviewing recent developments in climate change litigation. There were three avenues of litigation represented. First was the avenue of public litigation (i.e., lawsuits to force government action under existing public environmental statutes), which was presented by the Sierra Club’s David Bookbinder, who is the main attorney on the team that successfully challenged EPA’s omission of greenhouse gas precursors such as CO2 from regulation under the Clean Air Act. You may recall Massachusetts v. EPA, wherein a 5-4 U.S. Supreme Court ruled that CO2 is a pollutant that must be regulated under the Clean Air Act; last week, the Sierra Club filed a mandamus petition in the U.S. D.C. Cir. seeking to compel the EPA to take action pursuant to last year’s Supreme Court ruling. The second avenue presented at the conference was the private-law avenue of tort suits between private parties. This was represented by Alex Williamson, an attorney at F. Gerald Maples, P.A. in New Orleans (and a former student attorney at the Tulane Environmental Law Clinic, like myself), which has brought a lawsuit against the top GHG emitters in the country on behalf of a class of plaintiffs in Mississippi’s three coastal counties seeking (1) to redress harms caused by Hurricane Katrina, on the basis that Katrina’s severity was fed by the warmer surface waters caused by the global warming caused in part by the defendants’ GHG emissions; and (2) to compensate the plaintiffs for the higher insurance rates they have to pay based on climate-change risks to coastal residents caused by the defendants’ GHG emissions. That lawsuit, along with a handful of others nationwide, is currently facing some severe standing problems on the basis of the political question doctrine. I’ll post on that issue later in the week.

But what I want to touch on briefly here is the third avenue — NEPA litigation. This was not the focus of the panel, as much, and the presenter on this issue discussed primarily NEPA in its traditional role, as a procedural driver, and those cases that have discussed requiring discussion and consideration of global warming impacts in environmental impact statements required under NEPA section 102(2). What was not discussed, however, was a potential mechanism under NEPA suggested by section 102(1). Section 102(1) is a long-nascent provision that arguably requires substantive environmental review of federal actions, not merely procedural. It requires a much larger discussion frame than a blawg can provide, but suffice it to say that substantive review may well have survived Supreme Court pronouncements (which, when reviewed closely, are dicta, and do not relate to section 102(1) at any rate) that NEPA is only procedural in nature. I have laid this out extensively in an article published in the Tulane Environmental Law Journal in 2000: Is NEPA Substantive Review Extinct, or Merely Hibernating? Resurrecting NEPA Section 102(1), 13 Tulane Envtl. L.J. 411 (2000). If substantive review, indeed, survives under NEPA, then this may prove an untapped method to judicially address global warming concerns on many levels, from regulatory maneuvering under the Clean Air Act, to listing decisions for polar bears under the Endangered Species Act, to permitting decisions for siting new coal-powered power-generation plants.

I’ll post more thoughts from the Tulane Environmental Law Conference later in the week. Please come back soon, and join in the discussion.