This is your Charleston Problem as most important contributor to your (classroom) course grade, to be completed as group work and in several parts over the balance of the semester. Charleston has had a growing flooding problem for a number of years, and its prospects have not improved with the recent publication of the IPCC’s Sixth Assessment Report Part I. Charleston now has an Office of Resilience, and you can consult on their website the City’s All Hazards and Risk Assessment (November 2020). Are you familiar with the City of Charleston’s climate change lawsuit filed against a variety of local and national oil companies in 2020? But Charleston is really just a microcosm for any coastal urban area facing climate change, sea level rise and adaptation issues on a worldwide basis. We could just as easily talk about Jakarta or Bangladesh, but let’s stay close to home for this one. Meanwhile, climate litigation is actually a growth industry internationally, see Seztler & Higham, Global trends in climate change litigation: 2021 snapshot (LSE Grantham Institute Policy Report, July 2021); and listen to “The Climate Conversations – S1: Climate change and the law: What’s next as national courts, international law and climate action intersect? EP27” (Channel News Asia Podcast 03/05/21).
We are certainly closer to the beginning than the end of any Charleston solution, understood as having multiple dimensions. The issues are many, but in a nutshell the coastal areas and municipalities around Charleston all have overlapping, analogous problems allegedly resulting from climate change, attendant sea level rise and related intensifying weather disturbances. Accordingly, there is a question whether you can isolate such problems for the City of
Charleston or the Peninsula in a limited lawsuit with limited parties. May you protect the Peninsula employing flood barriers or a wall, etc., when as a matter of physics, water is simply diverted and goes somewhere else (so watch out Cooper and Ashley riverbanks, Folly Beach and Sullivans Island, etc.). In legal terms, who should have a seat at the table for any adaptation with areawide effects? Meanwhile, remedial measures (adaptation in climate change terms) will be quite expensive even for the Charleston Peninsula alone.
The adaptation cost estimate in the early studies addressing protection of the Peninsula or City of Charleston is circa $2 billion for an offshore surge barrier with wall roughly circling the Peninsula, but the basic principle applies that the broader the geographic area of protection, the more expensive remediation normally should be. So if one adds seats at the table, the remediation cost will presumably increase as geographic coverage does. And at various points, people will make arguments about protecting property values and the like. For example, the Rosemont and Bridgeview Village neighborhoods on the Peninsula– diverse, “low rent” neighborhoods– lie outside the protection of a proposed flood wall, with the result of disparate social impacts linked to anticipated flooding. But if protection of poor and middle-class homes seems too expensive for adaptation purposes, why should their taxes protect high value townhouses on the Battery? As a practical matter, the level of costs involved will lead to appeals for funding at both the federal and state levels, which may have differing views (e.g., differing opinions on environmental or climate justice). So hard-fought political disputes are easily foreseeable in the longer term, simply in terms of who pays, and for what? This is hardly the kind of dispute to be resolved ultimately in negotiations between the Historic Charleston Foundation, the City, a few environmentally minded NGOs and the oil companies. But having said that, is the full political process and paying for adaptation out of the public treasury any more suitable than litigation against (allegedly responsible) private parties? What should be the parameters?
Background. In terms of different stages in working our problem, initially you need to develop a bit of background on the recent goings-on in Charleston regarding climate change and sea level rise resulting in growing flooding risk over time. The first is to look at the idea pursued by the Post & Courier that Charleston developed a major periodic flooding problem over time (like Miami), with things projected to become much worse by sometime 2035-45. First there was periodic flooding increasing over time, such that in 2018 Charleston was the subject of a short case study in Chapter 19 of the U.S. 4th National Climate Change Report on sea level rise and coastal flooding in the Southeast. Then Charleston acquired a Chief Resilience Officer (and the City Office of Resilience), and with the Historic Charleston Foundation it participated in the Dutch Dialogues in 2019, talking about different approaches to water problems in different areas of Metro Charleston. At the same time, via a three year planning grant, the Army Corps of Engineers produced in 2020 the draft Charleston Peninsula Coastal Risk Management Study, commented upon once already in 2020 and facing further comment in 2021 (the Corps study proposed a flood wall around most of the City of Charleston on the Peninsula, which you will look at as the current state of play). Both the Dutch Dialogues and the Corps of Engineers proposal(s) have generated substantial commentary in the Post and Courier and as part of the formal planning process, such that local Lowcountry politicians, including Charleston Mayor John Tecklenburg, are now treating rising sea levels and coastal flooding as leading issues in their political campaigns. The climate change issues in Charleston are no longer simply of academic concern, but it seems fair to say that none of the proposed responses have received overwhelming political support, or general public acceptance thus far.
City of Charleston Lawsuit. We shall address the City of Charleston state lawsuit (City of Charleston v. Brabham Oil Company et al, Court of Common Pleas, Ninth Judicial Circuit, Civil Action No. 2020-CP-10-, filed September 9, 2020) itself in typical law school fashion. We shall slice and dice certain legal issues, before splitting you up to research and argue matters. The City of Charleston litigation was filed in state court, and limits itself to state law claims, but on the civil procedure side there are at least three issues. The oil companies being sued consist both of local oil companies (Brabham and Colonial) and national/international oil majors (Exxon, Shell, Chevron and BP), so there will presumably be a vigorous attempt at removal to federal court. Without prejudging the outcome, however, this climate change suit is largely a question of first impression, likely to wind up in the state supreme court on questions of state law at some point. So it is not entirely clear whether the matter should be left in state court ultimately to determine state law on a contentious question.
Beyond removal, there exists a certain question about intervention already alluded to (who are the necessary parties in the dispute?). All the various municipalities in Metro Charleston would be affected by climate change and remediation, but it is less clear whether they really would want to join the lawsuit (notwithstanding which, you might ask questions like whether Folly Beach on the downcoast side of any physical adaptation has the biggest stake in unforeseen effects in marine engineering terms). Beyond removal and intervention, a number of municipal and state level climate change lawsuits have been filed on the East Coast during the past 36 months by Charleston’s national environmental law counsel, the San Francisco-based Sher Edling law firm (beyond Charleston in Baltimore, Delaware, Rhode Island and the District of Columbia). The Charleston case is largely a common law case (nuisance and torts), with the addition of an SC Unfair Trade Practices Act claim of deception, so it is entirely imaginable that national/international oil majors sued elsewhere by the same lawyers would try to consolidate the cases. In fact, the Charleston case has been paused since Spring 2021, after the parallel Mayor and City Council of Baltimore v. BP et al case went to the US Supreme Court on a removal challenge, which case was subsequently remanded to the Fourth Circuit.
The problem is that the cases are presumably all filed locally in different jurisdictions under differing state laws, and the local oil company parties presumably differ. So the issues may resemble each other factually, but the applicable law and parties will be different to varying degrees– and consolidating cases would prevent novel questions from working their way up to individual state supreme courts in different jurisdictions. Bottom-line, we acknowledge but largely will not focus on the three civil procedure questions set forth above. Instead, in the first stage you will be called upon to research and form an opinion on the most likely potential affirmative defense justifying trying the case in federal court, namely an argument for federal preemption under the Clean Air Act. We shall exclude from consideration the factual issue that longer term subsidence on the Charleston Peninsula may weaken claims about the effects of sea level rise. So is the sea level rising or the land falling, which seemingly would have little connection with greenhouse gases (GHGs)? (Jakarta as coastal city with serious climate change issues suffers greatly from subsidence because of heavy residential and commercial reliance on well water, so there are commonalities across coastal city geography worldwide.) In the second stage, you shall focus on the core substantive questions, including the nuisance, tort and statutory claims, focusing ultimately on the climate attribution (or causation) claims to argue whether all the named oil companies selling substantial amounts of fossil fuels in South Carolina over an extended period may be held responsible for what the City of Charleston alleges is climate change due to increased GHG levels. You will note after you read the complaint that the plaintiff’s argument(s) are clearly modeled on tobacco litigation (failure to warn, despite knowledge of GHG’s deleterious effects), although there is an argument whether smoking cigarettes (tobacco) and driving around in your car, or running a factory/electricity generation facility (burning hydrocarbons) are really comparable.
We shall constitute each of your groups of students initially as law firms to prepare successively a 10-12 page memorandum on the federal preemption question to get started, then a 20-25 page memorandum evaluating the likelihood of success for the various theories and causes of action enumerated in the Charleston case, without telling you initially whom you eventually represent. After the groups submit those memoranda, they will be shared and discussed in class so that all groups have a common research base. At that point, we shall divide up roles among the groups, with one or more groups each functioning as plaintiff’s counsel, defense counsel and judge(s). The plaintiff and defense counsel groups should then write legal memoranda for and against a motion to dismiss for failure to state a claim on the state law side of not more than 35 pages. The judge group should receive their papers, hear arguments unless they simply wish to decide based upon the submissions, and then decide the City of Charleston dismissal motion addressing the substantive law in a written, reasoned judgment of not more than 30 pages. The thirty-page limitation is for any “majority” judgement. Should you have a dissenting “minority” within the judge group, you are encouraged to write also a reasoned “dissenting” opinion on the substantive law of not more than 10 pages to point up the real differences. If the judge group does produce a dissenting opinion, we shall lower the maximum length of the majority opinion to 25 pages. I actually want you to think this through, so you get a sense of what climate litigation might actually look like substantively.
Climate Justice and Other Aspects. We are interested in the City of Charleston litigation not only as of local interest, but also because it is generally representative of the hard questions encountered by practically all coastal urban areas affected by climate change. So we would like you to focus particularly on the distributive justice (or climate aka environmental justice) effects, while developing your own investigations beyond the law books. For those purposes, you shall be talking with 3-4 outsiders as part of your fact gathering process (presumably via zoom, teams or skype). We shall arrange for such zoom or similar calls lasting 45-60 minutes (one call with each outside person including representatives of all three different groups– everyone in the class is welcome to show up, we just want to limit the time donated by the outside folks and enable scheduling to accommodate them).
For the basics of environmental justice alongside Charleston specifics, you shall talk with Christopher DeScherer, Esq. as managing attorney at the Southern Environmental Law Center’s Charleston office (and anyone else from the SELC he wants to include on the call).
Mr. DeScherer wrote a comment, dated June 19, 2020, on behalf of the Coastal Conservation League and others on the Corps of Engineers proposal to build a flood barrier wall around the Charleston Peninsula, but noted the specific exclusion of Rosemont and Bridgeview Village.
(Meanwhile, you will note in two places the City of Charleston’s climate change complaint alleges negative effects generally on minorities and the poor.) Disproportionate effects on minorities and the poor are a common thread in climate change (climate justice), so Mr. DeScherer will talk about what SELC sees customarily in their practice, and how they think to respond in a practical sense.
For more details on climate justice and the specifics in Metro Charleston, you shall talk with Professor Kristin Dow as environmental geographer in the USC Geography Department, who works a lot in Charleston and is familiar with climate change impacts, politics and demographics in the Metro-Charleston area.
The Sher Edling East Coast lawsuits do not seem to be a coincidence, but seem part of a broader climate change litigation strategy, so beyond looking at their complaints and comparing them to the City of Charleston lawsuit, you shall talk with Amy Armstrong, Esq. as Executive Director and General Counsel of the South Carolina Environmental Law Project, concerning the considerations that go into how lawyers approach strategic litigation or regulatory commentary in terms of generally trying to change the law in areas like climate change, or environmental law more generally. How do you consciously go about trying to change the law to fit current circumstances? Are individual lawsuits pursued more to secure an individual remedy, or to heighten attention to serious problems as part of a longer-term approach? What does it mean to file pattern lawsuits, where you presumably seek to shape the direction of (climate) law’s development? What does it mean as climate change issues may achieve a higher general consciousness in political terms, as perhaps will result from the IPCC Sixth Assessment as it appears in pieces moving forward into 2022?
We would like you to talk also with someone from either a leading NGO or public body concerned with climate change (basically all coastally-oriented NGOs and public bodies are now concerned, as climate change’s effects become more visible), or with a superior understanding of physical oceanography or marine engineering as applied to Charleston’s issues. The point is to provide further in-puts either on the political rather than legal sides, or a better understanding of the science and engineering options, but that person is TBA, because with its lawsuit already filed so you should not talk with City representatives.
Finally, as a separate written output for the climate justice segment of this assignment, things have taken off in legal terms with environmental justice in federal law. Please take a look first at the text of the Climate Equity Act of 2020, now H.R 8019 116th Congress, cosponsored by Kamala Harris and Alexandria Ocasio-Cortez, see also Kelley, “Harris, Ocasio–Cortez introduce environmental justice bill” (The Hill, 08/06/20). The bill was filed shortly before Harris was selected as the Democratic vice-presidential candidate, and she since has been busy otherwise. The bill went nowhere in the midst of an election year, but now the climate change and justice material seems to have migrated into the $3.5 Trillion draft budget reconciliation bill, at the same time as the EPA seems to be looking at environmental justice for regulatory purposes, see Mock & Lowenkron, “The Infrastructure Bill is a Trillion-Dollar Test for Environmental Justice” (Bloomberg Citilab 08/11/21). Candidly, the Harris and Ocasio-Cortez bill still needed some work because it was drafted primarily to mandate and create an institutional structure for OMB and agency consideration of environmental justice issues as part of federal rule-making, plus at the end it mandated similar considerations for “federal investments.” The federal investment section of the draft statute is fairly minimal (seems an afterthought, although it might have been intended solely as jurisdictional grant, with the actual rules to be developed as regulations by agencies). If you look closely at the definition, it would seem to include federal grants and loans within the scope of “investments.” Harkening back to Charleston, it seems very likely that any eventual climate change remediation project will rely at least in part on a federal grant or loan, constituting a federal investment within the meaning of the draft statute. So “federal investments” in terms of climate change loans or grants look to be a growth industry.
You should be well-informed on the topic of climate justice in the Charleston setting, with some sense of what the representative problems may be, as well as the problems of where to draw the lines on remediation. Write a draft climate change grant eligibility regulation implementing the “federal investment” rule’s intent under the draft Climate Equity Act of 2020, or other sources like on-going articulation of EPA rules to add climate justice concerns to the mix. It would not hurt to have a functional climate change “federal investment” rule incorporating a justiciable standard. On the one hand, it should pay attention to the idea that environmental justice means some consideration of distributional justice in evaluating such climate change grants. On the other hand, resources are limited, and you cannot fix every problem. So where do you draw the line, which is a broader problem for climate justice? Should Rosemont and Bridgeview Village have been included inside the flood wall as a condition to federal funding, and, if not, what should they be owed? If you answer that they are entitled to a buy-out if they are not protected, what is a realistic “market” price in an increasingly flood prone area? What does it mean if most of the traditional affordable housing in expensive coastal areas like Charleston might be wiped out by flooding as a result (but on the other hand, if it were protected might be lost instead to gentrification, in short order)? Please draft a rule of not more than five pages, then add a short commentary of not more than four pages on how your exploration of climate justice aspects with the individual speakers informed your own rulemaking exercise, and how you think your rule would be applied under Charleston’s general circumstances. It is hard enough doing climate change adaptation planning generally, so how does it work when you implicitly must combine the adaptation exercise with urban planning?
Beyond strategy, the really interesting question in Charleston is likely to be how Charleston’s protection zone and associated approach are ultimately defined, and who it encompasses, with distributive overtones in terms of property prices, coastal retreat, etc. So while everyone likes Historic Charleston, why is the townhouse owner on the Battery more deserving than the ordinary homeowner at Folly Beach, or in low lying majority-minority neighborhoods, particularly when a majority of the funding arguably must come from the outside? There will be a distributional justice side also to the nationwide scrum for limited federal and state funding for climate change adaptation purposes, so best we try to understand the difficult choices in advance. Presumably, to succeed getting the initial $2 billion means the narrative must be competitive beyond local boosterism in Charleston, although the Charlestonians are rightly proud of their city. You should commence thinking in concrete terms about the distributional consequences of climate change adaptation using the local example, and what it tells us writ large about how to deal with distributive effects also in international environmental climate change law. But remember, the record is that the US has shied away from entering into international environmental law agreements with distributive overtones, from LOS to CBD and the Kyoto Protocol.
Copyright 2020–21 © David Linnan.