CHAPTER 3 COPING WITH CLIMATE: LEGAL INNOVATION IN THE ABSENCE OF FULL REFORM

• Jurisdiction: United States

Climate Change Law and Regulations: Planning for a Carbon-Constrained Regulatory Environment
(Jan 2015)
CHAPTER 3
COPING WITH CLIMATE: LEGAL INNOVATION IN THE ABSENCE OF FULL REFORM
Robert R. M. Verchick ^*
C. Faye Sheets ^**
Gauthier-St. Martin Eminent Scholar and Chair in Environmental Law, Loyola University College of Law
Senior Fellow in Disaster Resilience Leadership
Tulane University
New Orleans

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ROBERT R. M. VERCHICK is the Gauthier-St. Martin Eminent Scholar and Chair in Environmental Law at Loyola University College of Law, and Senior Fellow in Disaster Resilience Leadership at Tulane University, in New Orleans, Louisiana, and a Member Scholar at the Center for Progressive Reform in Washington, D.C. Professor Verchick served in the Obama Administration as Deputy Associate Administrator for Policy at the U.S. Environmental Protection Agency in 2009 and 2010. In that role he helped develop climate adaptation policy for the EPA and served on President Obama's Interagency Climate Change Adaptation Task Force. In the fall of 2012, he researched climate adaptation policies in India as a Visiting Scholar at the Centre for Policy Research in New Delhi, supported by a Fulbright-Nehru Environmental Leadership Award. He holds an A.B. degree from Stanford University and a J.D. degree from Harvard University. Professor Verchick's writing focuses on environmental regulation, climate change adaptation, and the developing field of disaster law. His work has appeared in many venues, including the California Law Review, the Southern California Law Review, and the environmental law journals at Harvard, Stanford, and Berkeley. He is the author of three books, including Facing Catastrophe: Environmental Action for a Post-Katrina World (Harvard University Press 2010), which was selected as a CHOICE Outstanding Academic Title by the American Library Association. Professor Verchick has testified before Congress several times and represented environmental interests in friend-of-the-court briefs in cases before the U.S. Supreme Court and the federal appellate courts. Professor Verchick has taught as a visitor at several schools, including Peking University (China) and Aarhus University (Denmark), and has received several teaching awards. He has lectured across the United States, Europe, and Asia.

I. Introduction

In the absence of federal legislation directing the government to adapt to the unavoidable effects of climate change, the Obama administration has put its faith in existing environmental laws like the Clean Air Act ("CAA"), the Endangered Species Act ("ESA"), and the National Environmental Policy Act ("NEPA"). But often federal objectives focus only on reducing greenhouse gases--what experts call "mitigation"--and neglect strategies for coping with the climate disruptions that we cannot avoid--otherwise known as "adaptation." Where the federal policy falls short, states are beginning to experiment on their own with climate adaptation strategies. This essay examines both approaches, mitigation and adaptation, and proposes actions that communities can take to become more resilient on a wanning planet.

II. The Impacts of Climate Change

The impacts of climate change are broad and complicated. They will demand a number of legal innovations to protect people and industries from the variety of potential risks. We know that global wanning is caused mainly by human activity.¹ And in general terms, we know the results. Scientists expect

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global warming to cause increases in average temperatures,² a rise in sea level, changes in precipitation patterns, and novel storm cycle patterns.³ A report by the U.S. Global Change Research Program (USGCRP) shows that the intensity of severe precipitation events has increased over the last 50 years, and it projects that there will be an increase in both frequency and intensity of heavy downpours.⁴ At the same time, the number of dry days is projected to increase, especially in more arid areas.⁵ Heat waves are expected to become more frequent, more intense, and longer-lasting, resulting in an increase in the frequency and intensity of large wild fires,⁶ and risks to public health.

With rising global temperatures, oceans have already expanded. The world's glaciers are melting and ice on the Greenland and Antarctic ice sheets has shrunk. During the past fifty years, sea level rose along most of the U.S. coast, with some areas along the Atlantic and Gulf Coasts experiencing increases exceeding eight inches.⁷ The rate at which sea level is rising is accelerating. Satellite data indicate that over the past fifteen years, sea level has been rising at a rate roughly double that observed over the 20th century.⁸ Global sea level is expected to rise at least one meter in this century, depending on the location and on future greenhouse gas emission levels.⁹ An increase of this magnitude, combined with the potential for stronger storms and storm surges, has the potential to pose an increasing threat to coastal cities, residential communities, infrastructure, beaches, wetlands, and other ecosystems.

Many coastal areas will likely face an increasing risk of erosion and flooding, especially along the Atlantic and Gulf Coasts, parts of Alaska, and the Pacific Islands. Barrier islands are projected to be fragmented, and existing homes, businesses, transportation systems, water and sewage systems, and other

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infrastructure threatened. A large portion of the nation's remaining coastal wetlands that provide valuable ecosystem services, such as water filtration and as spawning grounds for commercially important fisheries, would be lost.

An increasing percentage of the U.S. population is living in coastal areas and would be exposed to these risks. According to the National Oceanic and Atmospheric Administration (NOAA), approximately 153 million people (53 percent of the nation's population) lived in U.S. coastal counties in 2003.¹⁰ Moreover, vulnerable populations living on the coast face exacerbated risks when their homes and local economy are impacted by the changing coast.

The economic impact of sea level rise could be extremely significant. If the projected sea level rise comes to pass, and properties remain unprotected, water could inundate portions of major American cities, such as Boston, Miami and New York. Storm surges and high tides will increasingly threaten coastal communities throughout the country. Shoreline property could be threatened. New York State alone has more than $2.3 trillion in insured coastal property, much of which is exceptionally vulnerable to sea level rise. Productive activities along or on the ocean contribute more than $1 trillion to the nation's gross domestic product.¹¹

Climate change may harm a variety of industries as well. It is sometimes said that global warming will be a boon to North American farmers, but this seems overly optimistic. The U.N. Intergovernmental Panel on Climate Change does find that moderate levels of warming (1 to 3 degrees Celsius) could modestly increase crop yields in high-latitude countries. But if temperatures rise above that level, the positive effects will turn negative. The USGRRP finds that while modest increases in temperature are theoretically conducive to increased crop production, it warns that such benefits could be undercut by the droughts, downpours, and pest infestations that are projected to accompany warmer

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temperatures.¹² Other sectors at particular risk include energy production (which often involves heavy water use for cooling), natural resource management, and public health and safety.

In sum, global warming is shaping a future that promises to be a lot hotter, wetter, and drier, resulting in both sudden and gradual changes in the structure, and amount, of land. The rate and intensity of anthropogenic climate change is producing complicated risks for society, propelling us toward what has been called a "no-analog" future that will demand new ways of coping with environmental disruption and new ways of building resilience. The federal and state governments must act responsibly to protect particularly vulnerable populations, deter development that will inevitably put people more at risk, and assess the cause of climate change in a comprehensive plan - a plan which contemplates all of the variances that the phenomena of human-induced, rapid changes in climate is likely to produce.

III. A Federal Strategy

Without congressional action to handle climate change, federal action will come from the White House and administrative agencies. From this federal level, policymaking has focused almost exclusively on mitigation efforts. President Obama expressed this intention in the Climate Action Plan (the "Plan").¹³ The Plan focuses on making significant adjustments to the energy sector, with the objective of decreasing carbon pollution and supporting clean energy technology.¹⁴ The administration has tugged at the purse strings of big coal and other industries with high greenhouse gas emissions, while offering financial incentives to new or existing clean-energy sectors.¹⁵ In addition to shifts in funding, the government has eased the permitting process for cleaner facilities. The Plan boasts that between 2009 and 2013, the Department of Interior issued permits to 25 utility-scale solar facilities, nine wind farms, and 11 geothermal

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plants.¹⁶ Meanwhile, under Obama's administration the EPA set, for the first time ever, standards placing limits on carbon emissions.

The EPA has implemented a number of new regulations to address greenhouse gas emissions, using its authority pursuant to the Clean Air Act ("CAA"). The EPA and Department of Transportation are scheduled to issue new greenhouse gas and fuel efficiency standards for medium and heavy duty vehicles, to be applied to 2018 and subsequent year models.¹⁷ The EPA also proposed greenhouse gas emission...