Study

A study of the legal framework governing administrative agencies under the U.S. Constitution and the Administrative Procedure Act, with a particular focus on agency rulemaking and adjudication; Presidential power; Congressional control of agencies through statutes and other mechanisms of oversight; and judicial review of agency actions.

This survey course examines the legal and policy issues governing water quality and resource allocation in the United States. Students will be introduced to both the Prior Appropriation systems of the western United States and the Reasonable Use systems dominating the eastern states. We will study key laws that affect water quality and quantity, including the Clean Water Act, the Safe Drinking Water Act, the National Environmental Policy Act, the Endangered Species Act, and others.  Students will also explore emerging issues in water policy, including the regulation of "forever chemicals," protection of wetlands, and mitigation of and adaptation to climate change, among other policy issues.  Throughout the course, students will study how environmental justice relates to water resource management.

International trade and the World Trade Organization attract a lot of attention and debate. Why do almost all economists say that liberalizing trade flows is a good thing? Why do politicians – even ones who purportedly support free markets – often rail against import competition and "unfair trade"? How does trade liberalization interact with other public policy choices such as protecting the environment or promoting the economic development of poor countries? In this course, we will examine why the WTO exists, how it developed from the GATT and how it fits in the international economic order (Part I). The course will offer you an in-depth, practical knowledge of substantive WTO law drawing heavily on case law. It will address the basic principles of trade in goods and trade in services, as well as some of the more specialized WTO agreements on, for example on trade remedies (subsidies, anti-dumping and safeguards). From a more procedural side, the course will pay close attention to the unique WTO mechanism for the solution of global trade disputes, with special reference again to recent and ongoing cases (Part II). It will conclude by examining U.S. trade law – particularly the widely-used trade remedies laws – and assessing not only the practice of international trade law in the United States, but also whether these laws actually achieve their supposed policy objectives (Part III). Although this course will necessarily address key principles and theories undergirding the international trade law system, one of its driving themes will be the actual practice of this discipline in the United States and at the WTO. The course will be graded based on class participation and a final exam.

The Duke Environmental Law and Policy Clinic is an interdisciplinary clinic that represents non-profit community-based and environmental organizations throughout the region to address a wide variety of environmental concerns in a variety of different venues. Students work in interdisciplinary teams and engage directly with clients to develop legal and advocacy strategies, conduct site-based assessments, develop legislative and regulatory proposals, and participate in community outreach and education efforts. Students also may engage in litigation, regulatory, and policy proceedings as case needs dictate. Skills training is conducted in weekly seminars and case management meetings and emphasizes client counseling, legal and policy advocacy, networking and working with experts. Although the mix of topics addressed varies among semesters, common themes include environmental justice, climate change, water quality, natural resources conservation, endangered species protection, sustainable agriculture, public trust resources, and environmental health. Clinic faculty make an effort to honor student preferences for case assignments, consistent with case needs and each student’s objectives for professional growth and development.

Clinic Enrollment and Credit Policies

To enroll, law students must have completed their 1L year; Nicholas School students may enroll after their first semester with permission from the clinic's directors. International LLM students may enroll during their second semester with permission from the clinic's directors. Variable credit (4-6 hours) is allowed for law students with permission from the clinic’s directors.

Although not a prerequisite, students are encouraged to have completed Environmental Law, Ocean and Coastal Law and Policy, and/or Administrative Law prior to enrollment.

Ethics Requirement for Law Students

Students are required to have instruction in the Model Rules of Professional Conduct prior to, or during, enrollment in the Environmental Law and Policy Clinic. Examples of ethics classes that meet the requirement include Ethics in Action: Large Firm Practice (LAW 231), Ethics of Social Justice Lawyering (LAW 237), Ethics and the Law of Lawyering (LAW 238), Ethics and the Law of Lawyering in Civil Litigation (LAW 239), Criminal Justice Ethics (LAW 317) and Ethics in Action (LAW 539).

Important to Note: This course may not be dropped after the first class meeting. Students MUST be able to attend the day-long clinic intensive training session to enroll in this course.

This 2-credit seminar will examine global climate change and the range of actual and potential responses by legal institutions – including at the international level, within the United States and other countries (such as Europe, China, and others), at the subnational level, and at the urging of the private sector.

We will compare alternative approaches that have been or could be taken by legal systems to address climate change: the choice of policy instrument (e.g., emissions taxes, allowance trading, infrastructure programs, technology R&D, information disclosure, prescriptive regulation, carbon capture & storage, reducing deforestation, geoengineering, adaptation);  the spatial scale; the targets of the policy and criteria for deciding among these policy choices.  We will examine actual legal measures that have been adopted so far to manage climate change:  international agreements such as the Framework Convention on Climate Change (1992), its Kyoto Protocol (1997) and Paris Agreement (2015), plus related agreements like the Kigali Amendment (on HFCs) and ICAO (aviation) and IMO (shipping); as well as the policies undertaken by key national and subnational systems.  In the US, we will study national (federal) and subnational (state and local) policies, including EPA regulation under the Clean Air Act, other federal laws and policies relevant to climate change mitigation, state-level action by California, RGGI states, and North Carolina. We will also explore litigation involving tort/nuisance civil liability and the public trust doctrine to advance climate policy. 

Questions we will discuss include:  How effective and efficient are the policies being proposed and adopted? What actions are being taken at the local, national and international levels, and which reinforce or conflict with one another?  Can current institutions and legal frameworks deal with a problem as enormous, complex, long-term, uncertain, and multi-faceted as climate change?  What roles do scientific research, technological breakthroughs, and economic realities play in shaping legal responses?  How should the legal system learn from new information over time? How should we appraise the United Nations climate negotiations, and are there other models for international cooperation?  How should principles of equity, just transitions, and intergenerational justice guide efforts to address climate change? Should greenhouse gas emitters (countries, businesses, consumers) be directly liable or responsible for climate change impacts and compensate victims for their losses?  What is the best mix of mitigation and adaptation policies?  How will climate policy be influenced by geopolitical changes such as the rise of China?  How should the law address extreme catastrophic risk?  How should geoengineering be governed? What is the best path for future climate policy? 

Students must read the assigned materials in advance of class, and participate in class discussion. Each student will submit a short (5-6 page) paper, addressing the week's readings (and adding outside research), for three (3) of the 12 class sessions (not counting the first class session). A sign-up sheet will be circulated at the beginning of the course for students to select the 3 topics/class sessions for which they will submit these 3 short papers (so that these papers are spread across the semester). In addition, each student will write a longer research paper (15 pages), due at the end of the semester. Grades will be based on: 33% class participation, 33% the 3 short papers, and 33% the longer paper.

This seminar will provide students an opportunity to engage closely with emerging law and policy issues associated with the need to increase coastal resilience in the face of climate change.  The recent experiences of both North and South Carolina with Hurricane Florence have highlighted the need for coastal communities to address a wide range of issues associated with climate change.  In addition to designing approaches to increase resilience when faced with storms and rising sea levels, these issues include: (1) information-gathering (via maps, drones, and scientific research about coastal/ocean processes); (2) law and policy refinements (via statutes, regulations, and guidance); and (3) possible litigation to develop useful common law doctrines relevant to the tidelands and the public trust.  Through the use of current cases and policy issues under debate in coastal communities, students will work together to research the most salient questions presented by these issues.  They will analyze relevant facts, laws, policies, socio-economic considerations, and local ordinances, and prepare proposed solutions to these questions in the form of advisory memos and recommendations.  

During the past 40 years, environmental litigation in the federal courts of the United States has played an important role in shaping our quality of life.  Federal statutes designed to improve air and water quality, manage waste, protect species, and establish rules for the management of ocean resources have spawned numerous federal cases – some filed by affected industry, some by the government, and others filed by conservation groups and private citizens.  The resulting precedents affect many aspects of the environment in which we live.

This course introduces students to the progression of a hypothetical environmental case in United States federal courts.  The course begins with the appearance of a potential client, addresses several considerations relevant to a decision whether to file a complaint, examines discovery planning and execution, studies the preparation of dispositive motions, and concludes with an overview of the appeal process.  The course assumes that the hypothetical case will be decided on motions for summary judgment or for injunctive relief.  Therefore, class discussions focus on the manner in which such a case unfolds, with particular attention to developing both the facts and the theory of the case, framing pleadings, and designing and managing discovery.  The course explores these subjects from the perspective of counsel for defendants as well as for plaintiffs.  Students should emerge from the course better equipped to handle various practical aspects of litigation.

This course will focus on one of the most important elements in combatting, adapting to and mitigating the impact of climate change, namely the role of finance.  We will review the status of climate change science to gain an understanding of the challenge facing all of us.  Recognition and commitments by governments, including most particularly the United States, China, and Europe, will then be reviewed, before we consider the multiple linkages between finance and climate change, including the adverse impact of cryptocurrency.

Against this introduction the course will then delve into the various dimensions of financial markets and the players involved.  This is important to understand the broad ranging impact and opportunities for addressing climate change.  Once the markets and market participants are understood, the course will review the diverse roles of government agents and regulators, each of whom can have a far-reaching impact in shaping the markets and market behavior.  We will also assess the recognition of the challenge by financial market participants and their actual and potential responses to it.

A particularly thorny area is that of market analytics.  Many market operators claim to be “green,” but at this point the methods for determining the veracity of the claims remain very underdeveloped and often contradictory.  We will consider what has still to be done before we can really evaluate the “green” performance of firms and funds.  We will also face the real challenges that such firms face when trying to adapt.

The course will conclude with an assessment of the overall state of financial markets as one of the most important arenas in the struggle to meet the great challenges posed by climate change.