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Jan. 15, 2020 by Victor Flatt

CPR Member Scholar Flatt Launches Important Discussion on Legal Ethics and Climate

It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself.

Members of the legal profession are bound by a code of professional ethics that applies in the state in which they practice, and this code spells out their professional responsibilities to their clients, to the legal system, and to broader society. As Flatt explains in an article in the current issue of the Environmental Law Institute's Environmental Forum, it's time to review these rules of professional responsibility through the lens of climate change. In particular, his article looks at the climate implications of Rule 1.6 from the American Bar Association's (ABA) Model Rules of Professional Ethics, which governs attorney-client confidentiality. (Most states have adopted or based their respective legal codes on the ABA's Model Rules.)

Section (b) of Rule 1.6 outlines several exceptions to the general rule of confidentiality. Flatt argues that one of these …

Nov. 12, 2018 by Victor Flatt
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Late last week, a federal district court in Montana blocked construction on the Keystone XL pipeline. The decision in Indigenous Environmental Network, et al. v. U.S. Department of State is a significant victory for the environment and a major blow to the ultimate completion of the controversial pipeline.

The case centered on the Trump administration’s 2017 decision to reverse the State Department’s initial rejection of the pipeline project, issued in 2015. The court noted that the environmental impact statement prepared by the Trump State Department in support of the reversal is deficient in its analysis of future oil prices and the need for the project, the cumulative impact of Keystone with the Alberta Clipper pipeline, the need to finish analysis of cultural impacts along the route, and the need for updated oil spill information. The court also concluded that the Trump administration failed to …

Sept. 24, 2018 by Rebecca Bratspies, Victor Flatt, Sarah Lamdan
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Sarah Lamdan, Professor of Law at CUNY Law School, co-authored this post, which is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

This chapter is excerpted from a law review article that is forthcoming in U. Arkansas Law Review, titled "Taking a Page from FDA’s Prescription Medicine Information Rules: Reimagining Environmental Information for Climate Change."

What Happened?

In August 2017, Hurricanes Harvey and Irma hit the southern United States in rapid succession. These massive hurricanes wrought widespread devastation — destroying buildings, flooding neighborhoods, and taking lives. Harvey shattered the national rainfall record for a single storm, dropping more than 50 inches of rain in a 36-hour period. Thousands of stranded Houstonians waded through chest-deep floodwaters. Unbeknownst to them, those residents were wading through more than just water. Many storm victims were in fact wading through a toxic stew. The same …

Sept. 20, 2018 by Victor Flatt, Joel Mintz
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This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

What Happened

According to the Houston Chronicle, there were more than 100 releases of hazardous substances into land, air, and water during and after Hurricane Harvey. At least one dozen of the Superfund sites listed in or near Houston were flooded during the storm.

On September 3, 2017, the U.S. Environmental Protection Agency (EPA) acknowledged breaches at 13 area Superfund sites. Later in September, the EPA reported that it had recovered 517 containers of potentially toxic hazardous waste from Superfund sites that flooded during Harvey. In its first mention of these releases on September 22, 2017, the agency provided no information as to where the materials had come from, what they were, or how hazardous they were.

More than a month after the hurricane, EPA acknowledged a serious breach …

Sept. 19, 2018 by Victor Flatt
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On August 23, 2017, Texas Governor Greg Abbott declared a state of emergency as Hurricane Harvey approached the Texas Coast. That state of emergency was ultimately expanded to 60 counties in Texas. Emergency declarations in Texas (as in many states and for the federal government) allow the governor to unilaterally suspend specific rules and regulations if they are expected to hinder disaster recovery. The Texas Commission on Environmental Quality (TCEQ) asked Governor Abbott to suspend dozens of environmental rules on August 28, 2017, as Harvey was continuing to pummel Houston and the Texas Gulf Coast area.

The waiver request specified air quality rules related to emission “upset” events as well as monitoring and releases of unpermitted Volatile Organic Compounds. Predictably, the request indicated …

Sept. 29, 2017 by Victor Flatt
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This op-ed originally ran in the Houston Chronicle.

Every day during the Hurricane Harvey disaster, our hearts would sink as we kept hearing the word "unprecedented" again and again. Harvey wasn't supposed to strengthen so fast; it shouldn't have stalled where it did. Every day as we hoped the worst was over, Harvey would pummel us even harder.

Everything was outside the norm, breaking all records. Over 50 inches of rain. Houston's "wettest month in recorded history." High river marks exceeded by 10 feet. A total volume of rainwater four miles square and two miles tall. Millions of residents evacuated or sheltering in place in America's fourth-largest city. All of them afraid.

Just days later came Irma, the most powerful Atlantic hurricane on record, whose strength was matched only by its unpredictability. Who should evacuate and where? Then, in less than a week …

April 3, 2017 by Victor Flatt
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This op-ed originally ran in the Raleigh News & Observer.

President Trump's new "energy" executive order is an attempt to roll back Obama regulations on climate change, and even make considerations of climate change disappear from much of the policymaking process altogether.

That's quite a lot to accomplish by executive order, and despite all the media attention he got for it, the president is eventually going to discover that he can't eradicate climate realities from federal consideration with the stroke of a pen.

Among other things, Trump's order directs the EPA to take steps to get rid of the Clean Power Plan as currently constituted and begin rolling back an Obama era rule restricting methane emissions. These rules went through a full and complete rulemaking process; in order to undo them, the administration will have to undertake its own rulemaking.

That will take …

Nov. 7, 2016 by Victor Flatt
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During the U.S. presidential race, much ink has been spilled on how important the election is. But one of the most important issues of all – climate change – has made little appearance in the election discourse, even though it is one of many issues on which the candidates have sharp divisions.

But those divisions are not just important at the federal level. Climate change and environmental risk have also been politically divisive at the state level. Many state governments have made decisions about easing, ignoring, or repealing environmental and climate laws, and these decisions could literally be killing people.

We are all familiar with the Flint drinking water crisis of the last year, where many people, including vulnerable children, have been harmed by lead exposure brought about by budget decisions about the water supply, which failed to account for potential environmental impacts. Other states, including Texas, have …

Feb. 10, 2016 by Victor Flatt
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In a surprising moves to legal experts, the Supreme Court yesterday in a 5-4 ruling stayed the implementation of the EPA’s Clean Power Plan (CPP) supporting greenhouse gas reductions at fossil fuel fired power plants.  The move was surprising because the Supreme Court rarely involves itself in the determinations of whether or not a temporary stay of legal implications is warranted, largely leaving that to lower courts.  The D.C. Circuit, two weeks ago, refused to grant a stay, meaning that the balance of harms against the likelihood of prevailing in the case did not weigh in favor of stopping the implementation of the rule.

What does all of this mean?  Well, one could explain this very unusual action by the fact that the Clean Power Plan is itself very unusual.  No case before, including litigation over the Affordable Care Act, has had so many state …

Feb. 23, 2015 by Victor Flatt
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Today I joined a group more than 40 environmental law professors and clinicians from institutions around the nation in a joint letter to the University of North Carolina System Board of Governors urging that they reject a recommendation to shutter the Center on Poverty, Work and Opportunity, housed at the University of North Carolina Law School. That unfortunate recommendation arose from a special committee created by the board at the direction of the legislature to review all 237 of the state university system’s centers, in the wake of criticism of state anti-poverty efforts by the Center’s director, Professor Gene Nichol.

To be clear, the Center takes no money from the state, and hasn’t since 2009. It’s funded by private contributions. It’s being targeted not to save money, but because some in the legislature would rather not have to be reminded of poverty …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Jan. 15, 2020

CPR Member Scholar Flatt Launches Important Discussion on Legal Ethics and Climate

Nov. 12, 2018

Federal Court Deals Major Blow to Keystone XL Pipeline

Sept. 24, 2018

From Surviving to Thriving: Disaster in Disaster: The Emergency Planning and Community Right-to-Know Act Must Be Enforced

Sept. 20, 2018

From Surviving to Thriving: Hazardous Waste and Disaster Preparedness

Sept. 19, 2018

From Surviving to Thriving: Emergency Waiver of Health, Safety, and Environmental Rules

Sept. 29, 2017

Houston Chronicle Op-Ed: Burying Our Head in Sand on Climate Change No Longer an Option

April 3, 2017

News and Observer Op-ed: Trump Can Order, but Federal Judges Will Decide on Climate Rules