French Carbon Tax, New Orleans AALS Conference

On Tuesday the French government announced that it would establish a new carbon tax that will take effect on July 1, 2010. The tax will replace one struck down in December by France’s Constitutional Court on the grounds that its exemptions were so numerous that the violated the equality principle in taxation. The new tax is expected to have fewer exemptions while still responding to concerns that companies already subject to the European Union’s cap-and-trade system potentially could be subject to double taxation.

After celebrating my 25th wedding anniversary in Paris on Tuesday, I returned to Washington on Wednesday and then immediately flew to New Orleans to attend the annual conference of the American Association of Law Schools (AALS). This annual gathering brings together law professors from all over the country. It is the first time the conference has been held in New Orleans since Hurricane Katrina devastated the city in 2005. By coincidence on the plane from Washington to New Orleans I was seated next to Professor Tseming Yang from Vermont, which gave us a great opportunity to compare progress on our Global Environmental Law casebook project. At the AALS conference we met with staff from Aspen Publishing, our casebook publisher, who hosted a terrific reception at the Cabildo-Louisiana State Museum overlooking Jackson Square.

At the AALS conference I attended a fascinating “hot topic” session on the tort litigation spawned by Hurricane Katrina. The session, which was moderated by Tulane law professor Oliver Houck, featured presentations by the lawyers handling the lawsuits. These include a takings case against the U.S. Army Corps of Engineers (St. Bernard Parish v. U.S., 88 Fed. Cl. 528 (Fed. Cl. 2009) and a suit seeking to hold the Corps liable for damages under the Federal Tort Claims Act for its negligent maintenance of the Mississippi River-Gulf Outlet (MRGO or “Mr. Go”) that contributed to the storm surge that flooded New Orleans. In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp. 2d 644 (E.D. La. 2009). The lawyers handling these cases described how they were able to overcome formidable legal obstacles to holding the Corps liable through creative lawyering. Lawsuits seeking to hold oil companies liable for harm from climate change, including the Kivalina case and Comer v. Murphy Oil, 583 F.3d 885 (5th Cir. 2009), also were discussed. The Kivalina case is now on appeal to the U.S. Court of Appeals for the Ninth Circuit, while a petition for rehearing en banc is pending in the Comer case. A petition for rehearing en banc also is pending in the Second Circuit in the Connecticut v. American Electric Power lawsuit seeking to require electric utilities to reduce their emissions of greenhouse gases (GHGs). The speakers seemed convinced that the climate change litigation ultimately will be addressed by the U.S. Supreme Court regardless of future action in the U.S. Courts of Appeal.

I also attended terrific sessions on the constitutional issues raised by government efforts to reform financial markets, regulatory oversight and transparency in the Obama administration and adaptation to climate change. Podcasts of the sessions at the AALS conference will be available in the future on the association’s website at: www.aals.org.

On Friday I toured the areas of New Orleans that had been severely damaged by the Hurricane Katrina flooding with a guide who was a resident of the devastated Lower 9th Ward. We first visited the 17th Street Canal where levee walls had failed flooding the Lakeview neighborhood. We then traveled east along the shores of Lake Pontchartrain, through communities around the City Park, Eastern New Orleans, and through the Lower 9th Ward. Despite extensive rebuilding, the damage is still shocking to comprehend. A flash illustration of the flooding is available on line at: http://www.nola.com/katrina/graphics/flashflood.swf