D.C. Circuit Review – Reviewed: Unsolicited Advice to 2Ls and 3Ls

by Aaron Nielson — Friday, Aug. 25, 2017@Aaron_L_Nielson

School will soon start again. Our 1Ls started orientation this week and our upper-level students start classes again on Monday. This week thus seems like a good one to offer unsolicited advice — especially because the D.C. Circuit only decided one case this week (which number, more or less, is what I predicted).

Here we go.

Now is not the time for a “prevent defense.” This advice comes from Christine Hurt, noted blogger, New Yorker winner, and one of BYU’s associate deans. Here’s a common story. A law student does really well as a 1L. And with a good GPA comes good opportunities — jobs, clerkships, etc. So the student decides to play a “prevent defense.” He or she picks easy classes — better still, ungraded classes — to run out the clock. Here is another common story. A law student does poorly as a 1L. So the student decides to mitigate the damage by taking easy classes going forward. (As an added bonus, this means the student doesn’t have to stare at discouraging transcripts anymore.) Students, these are bad stories. If you have done well, and you want to clerk (and you should — more below), judges pay attention not just to your grades but also to your classes. If it looks like you are loading up your schedule with cushy classes, judges will know. Even if you have a clerkship, moreover, there are still important things to learn. If you avoid hard classes, you will regret it because there will be subjects you should know but don’t. If you have done poorly, moreover, you need those skills. In either event, you don’t want to be someone who is content with mediocrity. If you develop bad mental habits as a law student, which includes a fear of doing hard things, you will have bad mental habits as a lawyer. So take hard classes.

You want to clerk. As regular readers know, one of my goals is to encourage students to clerk — especially students at schools that do not have a strong clerkship culture. Trust me: you should want to clerk. Off the top of my head, clerks (a) learn how judges decide cases, (b) spend a year learning to write well, (c) gain a mentor even beyond the clerkship year, (d) learn the rules, (e) get better jobs, (f) do more interesting work post-clerkship, (g) have better advancement prospects, (h) have better lateral prospects, (i) are often attractive to employers in more geographic markets, (j) are exposed to a wide range of cases and so can direct their careers better, (k) gain co-clerks, who will become some of their best friends, (l) build a larger network by interacting with clerks of other judges, (m) sometimes get to visit places they would not otherwise go to, (n) have intellectual conservations that you can’t have unless you know someone really well and are in a place where such discussions are encouraged, (o) have time to write law review articles (if that is your thing), (p) gain greater confidence in their legal skills, (q) often get clerkship bonuses, (r) are part of a family of clerks that extend beyond their specific clerkship year, (s) can restart their career if they don’t like their current job, (t) learn to respect but not fear judges, (u) understand the back story of important events, (v) serve their country by sincerely trying to get the law right, (w) find time to exercise, (x) learn how to disagree in a professional way, (y) are humbled by reviewing clerkship applications and realizing just how many talented people there are in the world, and (z) for some reason get a paycheck too. If you have done well so far in law school, you should definitely be looking to clerk. If you haven’t done so well, however, don’t give up. There are clerkships that are not as competitive but are still wonderful. Don’t write off state court clerkships.* To be sure, a clerkship doesn’t make sense for everyone. But think very hard about it.

Try to do real research for a professor. There are many students. It is easy to not get to know the faculty at your school very well. That is not ideal for you or for the faculty. Unfortunately, it usually takes effort on your part to get to know the faculty. A great way to do that is by being an RA. Here is a secret, however. Often the first project you do for a professor is a test or trial, at least de facto. The professor wants to know if you are dependable. If you can do more than one project for a professor, you will start do to more meaningful work.

Get out of town sometimes — physically or at least mentally. Law school can be very stressful. Being around other law students all of the time doesn’t help. So get out of town! You can’t do this too often, of course; you have work to do. But from time to time, leave. Go someplace new. Speak with non-lawyers. Call your parents (you should do that anyway). And even if you can’t leave town, you can at least try to make friends with students in other disciplines (the cynic might say make friends at the business school; I think you should just make friends). You can also read a good book. For what it is worth, I’m partial to Thackeray.

Finally, take Intro to Intellectual Property, Administrative Law, Business Associations, Antitrust, and other classes with broad applicability that will help you understand the world. I wish I had studied patents and copyrights while I was in law school. I didn’t because I figured I’d never need it. I’m not an engineer, nor am I an artist. It turns out that almost everything has an IP-piece to it. That was a huge mistake on my part. It has taken me a lot of time to catch up. If you are reading this post, you understand why Admin Law is important — you can’t understand the modern government without knowing Admin Law. It should be taught in elementary school, junior high, high school, and college. But it is not — so take it in law school. Business Associations is also essential; every lawyer needs to know the basics. I also put antitrust on this list because, even if you won’t practice as an antitrust lawyer, the analytical tools are invaluable — especially if you haven’t studied economics. Even beyond the basics like supply and demand, you should be able to think “at the margins” and understand “elasticity.”

And that brings me to this week’s D.C. Circuit case: Sierra Club v. FERC. After reading this opinion, I’m curious about the price elasticity of demand for energy in Florida. Here’s the background. FERC allowed new natural-gas pipelines to be build in the southeastern United States. Various environmental groups sued, arguing that the agency should have prepared a better environmental impact statement. Judge Griffith (joined by Judge Rogers) rejected almost all of these arguments. But the Court accepted one: “We agree that FERC’s environmental impact statement did not contain enough information on the greenhouse-gas emissions that will result from burning the gas that the pipelines will carry.” Judge Brown dissented.

Why does this case make we wonder about elasticity? Because the majority’s theory goes something like this: “All the natural gas that will travel through these pipelines will be going somewhere: specifically, to power plants in Florida, some of which already exist, others of which are in the planning stages. Those power plants will burn the gas, generating both electricity and carbon dioxide. … The next question before us is whether, and to what extent, the EIS for this pipeline project needed to discuss these ‘downstream’ effects of the pipelines and their cargo. We conclude that at a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible.” One of the issues in this case is whether FERC needs to think about that, given that another agency will decide whether those power plants can operate; the pipeline developers, with supporting case law, argued that FERC was not required to think about the effects which are more proximately caused by the regulatory decisions of other agencies. The majority distinguished those cases (the dissent did not buy it) on the ground that the agency here had independent legal authority to disallow the pipelines because of their environmental impacts.

Beyond that, however, the Court addressed elasticity, noting that “FERC next raises a practical objection, arguing that it is impossible to know exactly what quantity of greenhouse gases will be emitted as a result of this project being approved.” The Court rejected this argument: “True, that number depends on several uncertain variables, including the operating decisions of individual plants and the demand for electricity in the region But we have previously held that NEPA analysis necessarily involves some ‘reasonable forecasting,’ and that agencies may sometimes need to make educated assumptions about an uncertain future.” Here, the dissent pounced:

there is also nothing preventing the Intervenors from pursuing an alternative method of delivery to account for the same amount of natural gas. Practical considerations point in the opposite direction. Both the Board and the Commission have concluded Florida has a need for additional natural gas, and nothing in today’s opinion takes issue with those holdings. Additionally, the Commission has concluded that the failure to take action to address this natural-gas shortage “could result in . . . fuel shortages” and “could lead to insufficient energy production to meet expected demands.” JA 920. Given the dire consequences of failing to act, it is inconceivable that the Intervenor utility companies would stand idly by and allow a power crisis to develop. The much more likely result is that they would simply choose another alternative—albeit a much more inconvenient, expensive, and possibly environmentally-harmful alternative—in response to a denial of a certificate by FERC. See Oral Arg. Rec. at 59:45–59:50 (stating the Intervenors are “going to keep the lights on” regardless of whether FERC approves the pipelines). … [T]he Commission here has no authority to prevent the emission of greenhouse gases through newly-constructed or expanded power plants approved by the Board. To be sure, the Commission could make it extremely inconvenient to deliver the same amount of natural gas to the plants, but this is an issue of practicality, which, as conceded by the majority, is irrelevant under NEPA. See Maj. Op. at 23. Accordingly, the Commission was not obligated under NEPA to discuss downstream greenhouse gas emissions, and I would deny the entire petition for review.

The demand for power, of course, is not entirely inelastic; at some point, if prices go up, the amount demanded will go down. But if, in fact, the demand is relatively inelastic, the dissent makes an interesting point. Even if these pipelines are not built, nothing much will change except prices will increase. And at least as I read the opinion, the majority does not necessarily disagree — it just wants more analysis. Presumably if FERC explains, through “reasonable forecasting,” that carbon emissions won’t change much because folks will still use roughly the same amount of energy, that will be enough. (The majority also says it may be enough for the agency to explain why it cannot “quantify and consider the project’s downstream carbon emissions.”)

Needless to say, there is a lot more going on in this case. Many lawyers will read it. But for purposes of this post, you get the point — understanding economics concepts is invaluable. So take hard classes.

* See, e.g., Twitter.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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