New Evolutions in the Law of Climate Change and Sea-Level Rise.

Author:Deady, Erin L.

Climate change and sea-level rise law continue to evolve. Federal and state regulatory and policy responses involve expanding and evolving approaches to the legal issues stemming from the new future of environmental conditions. This article explores four aspects of the law of climate change and sea-level rise: First, changes in the federal regulatory context that address greenhouse gas management and climate change. Second, other caselaw such as takings, nuisance, and flood disclosures. Third, the concept of the public trust doctrine to compel action on climate change. Finally, approaches at the state and local levels are summarized. These issues form the new reality of climate change and sea-level rise law.

Regulatory Updates Related to Climate Change

Generally, the National Environmental Policy Act (NEPA) of 1969 (1) requires federal agencies to take a "hard look" at the environmental impacts of their actions and disclose public information, such as the environmental impacts of a proposed action (including cumulative impacts); adverse effects that cannot be avoided; alternatives to a proposed action and commitments of resources for major federal actions significantly affecting the quality of the human environment. (2) Actions include federal programs, projects, regulations, land and resource management plans, grants and loans, permits and approvals. Federal agencies have different internal NEPA procedures, such as those followed by the U.S. Army Corps of Engineers, (3) the Federal Highway Administration, and the Federal Transit Administration. (4) The Council on Environmental Quality (CEQ) administers NEPA. (5)

CEQ worked from 2010-2016 to promulgate guidance on how federal agencies should consider the impacts of their actions on global climate change in NEPA reviews. The final 2016 guidance (6) provided a framework for agencies to consider both the effects of a proposed action on climate change, by its estimated greenhouse gas emissions (GHGEs), and the effects of actual physical climate change (rising temperatures or sea levels). The justification was that federal actions have the potential to contribute to climate change by producing GHGEs, or alternatively, be affected by impacts of a changing climate, such as rising sea levels, extreme weather, drought, or wildfires. Another key factor was that the federal agencies and rapidly evolving caselaw were not aligned in how to treat these issues. The final 2016 guidance addressed four priority issues: quantifying projected GHGEs; directing agencies to determine the appropriate level of review; considering alternatives that would make the action and affected communities more resilient; and use of existing information and science when assessing proposed actions. In early 2017, CEQ was directed to withdraw the 2016 guidance. (7)

On June 21, 2019, CEQ issued new draft guidance in the Federal Register for comment (extended to August 26, 2019), (8) which focuses more narrowly on only evaluating GHGEs for proposed major federal actions resulting in more timely environmental reviews and permitting decisions for infrastructure projects. It directs agencies to quantify a proposed action's direct and reasonably foreseeable indirect GHGEs when substantial enough to warrant it and when it is practicable (local, regional, national, or sector-wide emissions estimates are acceptable to use). Finally, it states that agencies should consider reasonable alternatives to the proposed action and discuss short- and long-term effects and benefits. The guidance does not require a sea-level rise or climate-impact analysis. Finally, the analysis need not weigh the effects of the various alternatives in a cost-benefit analysis. The guidance specifically states: "This guidance does not change or substitute for any statutes, regulations, or any other legally binding requirement and is not legally enforceable."

Other regulatory changes at the federal level involving climate, GHGEs, and sea-level rise include:

1) The Environmental Protection Agency's (EPA) proposed policy rescinding the methane requirements and removing regulation of transmission and storage facilities from EPA's purview under the Clean Air Act. (9)

2) The National Highway Traffic Safety Administration and EPA propose to amend the Corporate Average Fuel Economy (CAFE) and GHGEs standards for passenger cars and light trucks and establish new standards, covering model years 2021 through 2026. (10)

3) Revocation (11) of Executive Order 13690, signed January 30, 2015, (12) requiring federally funded projects to factor rising sea levels into construction. However, in 2018, the Department of Housing and Urban Development required buildings constructed with disaster relief grants to factor in sea-level rise. (13)

Takings, Nuisance, and Disclosures

Several concepts previously identified as "emerging" topics (14) have now taken center stage in the evolution of climate change caselaw. There is notable growth of certain legal theories...

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