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For Peat’s Sake: Government Liability and Climate Change

For Peats Sake LogoBy Marla J. Stelk, Policy Analyst, ASWM

In April of this year, Dr. Jon Kusler, Esq. (founder and former Executive Director of the Association of State Wetland Managers) – published a report titled “Government Liability and Climate Change: Selected Issues for Wetland and Floodplain Managers.”  As a local elected official, I was eager to read his report and provide a review via my blog, For Peat’s Sake.

There is broad scientific consensus (97%) that climate change is real and poses a significant risk to human, ecosystem and economic health (see “Consensus on consensus: a synthesis of consensus estimates on human-caused global warming” by John Cook et al). Federal, state, tribal and local agencies are actively working on decreasing the risk of climate change impacts, i.e., hurricanes, flooding, drought, water pollution, disease, etc. for communities nationwide. Most of these efforts, however, are novel and/or cmglobalexperimental and there is still a lot we don’t know about future climate change impacts. Innumerable different systems and players are affected in any climate change scenario which makes modeling and forecasting future scenarios extremely challenging. And as George E. P. Box once said, “all models are wrong, but some are useful.” So how do we decide how to invest our limited government financial resources – how do we weigh the risks?

This inability to deliver forecasts with 100% certainty has resulted in inaction by some communities who view the costs associated with risk reduction to be an unnecessary expense in an uncertain future – or for what they believe to be normal climate variations. But what many folks are not considering is the risks and associated costs of inaction. Nationwide, the cost of inaction has been immense. Billions of dollars have been spent on disaster recovery from climate induced natural hazards. In fact, the U.S. National Flood Insurance Program (NFIP) is currently $23 billion in debt and according to an article in e360 digest, “More than 2,100 properties across the U.S. enrolled in the NFIP have flooded and been rebuilt more than 10 times since 1978.” It goes on to say that “Those homes, known as “severe repetitive loss properties,” make up just 0.6 percent of federal flood insurance policies. But they account for 10.6 percent of the program’s claims — disasterfema093016totaling $5.5 billion in payments.” It is important to point out that this cost of inaction is funded by hard earned taxpayer money. Beyond the financial risks involved, there are legal implications that the majority of folks I have discussed climate change risk with have not even considered. That is why Dr. Kusler’s report is so timely and so critical.

As Kusler points out in his summary, “Looking to the future, climate-related and natural hazards will be increasingly quantified, foreseeable and predictable with improved computer models and global and regional monitoring. “ If it’s one thing humans are good at, it’s developing new and improved technology, so Dr. Kusler’s point is important. Governments who do not heed risk information and adequately prepare their communities may be sued for negligence. On the other hand, governments who do take actions to make their communities more resilient through activities such as tightening regulations on private property without payment of just compensation (i.e., a “takings” claim) may be equally subject to lawsuits.

Dr. Kusler’s report is a very digestible primer on legal theory and provides multiple case studies to illustrate each potential legal pitfall. To date, no government has been successfully sued for failing to consider climate change in its policies or regulations, but the possibility of a successful lawsuit in the next 10-20 years is entirely possible. Here are some of the reasons that Kusler provides in his report:

  1. houstonflood093016Flood, landslide, avalanche and other natural hazards including but not limited to those caused or contributed to by climate change are becoming increasingly “foreseeable” and “predictable.”
  2. Flood-related suits which are now quite common claiming that governments have increased flood, erosion, and related hazards on private lands in traditional, non-climate change contexts may be expanded to include climate change-related flooding and erosion as well.
  3. Advances are being made in the techniques available for reducing hazard losses including those from climate change-related flooding.
  4. Advances are being made in natural hazard modeling techniques available to establish causation, the reasonableness of conduct, and damages.
  5. Courts are making it increasingly difficult to establish the defenses of “act of God”, “contributory negligence” and “assumption of risk”.

The good news is that there are actions that can be taken immediately to not only provide better risk reduction for our communities, but that also reduce governmental liability. I don’t want to spoil the report before folks get a chance to read it for themselves, so I won’t outline them here, but Dr. Kusler provides several implementable recommendations that anyone involved in government policy and regulation should consider using. So For Peat’s Sake, I highly recommend reading Jon’s most recent report and taking the necessary steps to reduce your community’s risk and governmental liability.

This entry was posted in climate change, climate change adaptation, environmental law, flooding, global warming, government, hurricanes, Land use planning, law, natural hazards, resiliency, sea level rise, wetlands legal. Bookmark the permalink.

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