An earlier post noted that adaptation to climate
change is inevitable and is finally emerging as a priority for
public policy. Long overshadowed by campaigns to prevent or
slow global warming, federal and state initiatives and efforts by
many professionals have resulted in efforts to start to collect
data and promote serious planning for ocean rise and other effects
of climate change.
Storm Sandy has more than reinforced that trend: it has established
a much wider recognition that planning, design, engineering and
regulatory decisions must incorporate the expected impacts of
climate change and can no longer rely on historic weather and
temperature conditions. That shift will have broad
implications throughout the legal system, amounting to an emerging
law of adaptation to climate change that is distinguishable from
the emerging law of greenhouse gas controls.
As often is true, the legal academy is in the vanguard –
there is a surge of law review articles and also a recent compilation published by the ABA.
For example, utility regulators have broad authority to require
public service companies to prudently operate and maintain their
systems. It is common for regulators to require emergency
response plans, and, in some states, to impose significant penalties for overly delayed
restoration of service after storm events.
Now, regulators are likely to require utilities also take account
of changes because of global warming effects, not just based on
historic conditions. Environmental groups recently petitioned NY regulators to so
require.
But how exactly can this step be done? Modeling of the timing
and extent of climate change effects can only produce broad ranges
and generalities and are indefinite about effects at particular
locations. What retrofitting is needed to assure reliable
service to far future ratepayers and at what expense to current
ratepayers? Ratepayers, regulators and utility stockholders will
not reach agreement without significant dispute.
Existing zoning for flood plains should be modified to account for
climate change. Making those changes will trigger large
disputes as previously settled expectations are overturned.
Until the rules are changed, are zoning bodies tied to outdated
flood control maps incorporated into their regulations, or can they
consider supplemental, updated information?
Environmental impact reviews for proposed projects typically
address the effects of a project on the environment. Now must
they consider the effects of the environment on the project?
How? It will be litigated.
Also, as noted in an earlier post, the public trust doctrine might
not serve to require regulatory agencies to regulate greenhouse gas
emissions. But will it successfully undergird a state's
assertion of authority to regulate activities on or affecting lands
subject to the public trust in order to account for changes and
threats to shorelines? As beaches recede, will public trust
lands start to incorporate currently private property?
The common law of property, too, will be affected. A
landowner can lose title to land if it slowly disappears by
reliction due to changes in a water body's natural behavior,
whereas a sudden loss by avulsion allows the landowner to keep
title and restore the land. But what if the sudden loss is
due to a storm event that is part of a slow rise in ocean
levels?
Finally, at what point will it become clear that professionals must
take account of global warming in designing structures or else
experience risk of liability for unanticipated effects?
Previously published by the American College of Environmental Lawyers.
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