Legal Barriers Bridges to Climate Change Adaptation CMTC ...€¢ Coastal Engineering ... Dictionary...

©2013 Vinson & Elkins LLP Confidential & Proprietary

Legal Barriers & Bridges toClimate Change Adaptation

Margaret E. Peloso, JD, Ph.D.

Carbon Management Technology Conference

October 23, 2013


Sea Level Rise Threatens Key Coastal Infrastructure

The Need to Adapt

Yoskowitz et al., The Socio-Economic Impact of Sea Level Rise in theGalveston Bay Region (2009).


Increased Storminess Disrupts Business

The Need to Adapt

Source: AP/John Minchillo

http://abcnews.go.com/US/transportation-york-city-open/story?id=17600758

Source: NPR


Changes in Water Availability Present Challenges

The Need to Adapt


Policy Responses to Sea Level Rise

Barrier 1: Property Rights and the TakingsClause

• CoastalEngineering

– Armoring

– Beach nourishment

• ManagedRealignment

– Rolling easements

– Economicincentives


The Takings Clause


• The 5th Amendment of the Constitutionforbids the taking of private propertywithout just compensation.

• Two types of takings

– Physical

– Regulatory


Regulatory Takings


• When government regulation too intrusive, it isequivalent to a physical invasion.

• Lucas: some government regulations are so intrusivethat they are equivalent to physical invasion

– Background principles are key.


The Public Trust Doctrine as a Bridge?

Barrier 1: Property Rights and RegulatoryTakings

• State holds title tosubmerged lands intrust for the public


Federal programs reducedisaster recovery costs borneby local communities

• National Flood InsuranceProgram

• Stafford Disaster Relief

• Rebuilding Tax Credits

Mismatch of Costs and Benefits in Coastal Development

Barrier 2: Federal Disaster Relief

www.msc.fema.gov


Environmental Protection Agency

Barrier 3: Scope of Agency Authority to Adapt

• Evaluating legal basis for incorporating climate changeimpacts in setting new standards and permits under CWAand CAA

• Determining long-term environmental and economicconsequences of climate change when incorporatingadaptation measures in proposed actions


U.S. Fish and Wildlife Services / Department of Interior


• Development of new policies (e.g. managed relocation)

• Revisions of existing policies (e.g. redefining whatconstitutes native, invasive and exotic species)

• Identifying new and revising existing laws, polices andguidance to provide incentives to mitigate climate changeby reducing agency’s carbon footprint

• Trans-boundary issues related to cross-border species


U.S. Forest Service / Department of Agriculture


• Enhance capacity of forests and grasslands to adapt toenvironmental stresses of climate change and maintainecosystem services

• Assess how land management activities can be modifiedto better facilitate adaptation at various spatial scales

• Effective nationwide integration and coordinationmechanisms

• Strategies on integrated vegetation management,biomass, open space, ecological restoration, and water


Army Corps of Engineers / Department of Defense


• Developing methods and procedures to addressnonstationarity in water resource management

• Working with States and interstate bodies to incorporateIntegrated Water Resources Management and adaptationplanning into programs

• Working with States to identify flood risk and droughtmanagement

• Developing benchmarks for incorporating adaptivemanagement into water projects, operational proceduresand planning strategies


The Biggert-Waters Flood Insurance Reform Act of 2012

Bridge 1: Flood Insurance Reform?

• Reauthorizes NFIP through 2017

• Premium reform

• Limitations on the availability of grandfathered premiums

• Improved flood risk mapping

• Establishment of reserve fund

• Creation of repayment schedules


• Incentive to elevate

– Elevating building aboveFEMA flood elevationlevel lowers premiumsignificantly

– E.g., $250,000 home in A-zone built 3 feet aboveflood elevation level willcost ~$376/year; built atflood elevation level =$7,203/year

New FIRMs and Post-Sandy Rebuilding

Bridge 1: Flood Insurance Reform?

Source: Wesportnow.com

Source: Fema.gov


CSOs and the Challenge of Sea Level Rise

Bridge 2: Green Infrastructure

Source: Greatlakes.orgSource: HudsonRiverkeeper.blogspot.com

Source: Cincinnati.comSource: Bridgemi.com


Bridge 2: Green Infrastructure

Source: EPA.gov

Source: EPA.gov Source: EPA.gov

Source: EPA.gov


Force Majeure as a Driver of Corporate Adaptation

Bridge 3: Force Majeure

Source: NY Times

http://www.pioga.org/photo_images/177_large.jpg

http://texasclimatenews.org/wp/?p=2839http://www.cokecce.com/corporate-responsibility-sustainability/water-stewardship


Climate Change and Force Majeure


• A force majeure clause “protects theparties in the event that a part of thecontract cannot be performed due tocauses which are outside the control of theparties and could not be avoided byexercise of due care.” Black’s LawDictionary 645 (6th ed. 1990).


General Approaches to Force Majeure


• Force majeure is a pure provision of contract law

• Force majeure includes both contractual and common law aspects.

– Typically states following this interpretation of force majeurerequire a showing that the event was unforeseeable at the timeof contracting.

Key Questions:

– Are disruptive climate events truly unforeseeable?

– What must parties do to prove that the disruption could not havebeen avoided through the exercise of due care?


Tort Liability as a Driver of Adaptation?

Bridge 4: Tort Liability?

Source: http://www.nytimes.com/imagepages/2009/04/21/us/21katrina_CA0.ready.html

Source: npr.org

Source: http://slfpae.com/

Legal Barriers Bridges to Climate Change Adaptation CMTC ...€¢ Coastal Engineering ... Dictionary...

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