Planning for Climate Change & Adaptation Locally

What You Don’t Plan for May Land You in Court

Erin L. Deady, Esq., AICP, LEED AP

The Broad Brush-Stopping the Impacts

• United Nations Framework Convention on Climate Change (UNFCCC) (1992) voluntary goal of reducing GHGEs from developed countries to 1990 levels by 2000

• Kyoto Protocol (1997) binding targets to reduce GHGEs 5.2% below 1990 levels by 2012 (U.S. non - “ratifier”)

• Copenhagen Accord- 4% below 1990 levels by 2020 (not binding)

• U.S. Response:– Attempts @ legislation, numerous in last 4 years– Supreme Court: EPA has authority to regulate CO2 – Reporting for sources emitting over 25,000 MTCO2e

– No legally-binding cap on GHGEs

The Current State of the Courts

• 527 total cases as of October 2012 (Source: Center for Climate Change Law, Columbia Law School)

• 26% challenges against Federal actions (NEPA, CAA, etc.), 22% coal cases & Federal and state NEPAs (21%)/ESA 6%

• Takings issues (as applied to adaptation strategies)- on the rise• Common law claims (4% but high profile)

– Kivalina, (Dismissed in September 2012) -"But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law."

– Comer, (Second time currently on appeal)– In re Canal Breaches Katrina-Overturned damages award– Vodanovich v. BOH Brothers- suit against the oil and gas industry

for impacts to wetlands and coastal buffer areas, which compromise the levee system and result in ongoing harm.

The Subtle Legal Hook

• ESA• NEPA• CAA• CWA• MMPA• FOIA/1st Amendment• Energy Policy Act• Global Climate Change

Research Act• Corporate Reporting/Securities

Disclosure• FTC

• “Cap-and-trade”: regulation where GHGE’s are capped and allocated through the distribution of “allowances” representing a right to emit.

• Regulate vehicle standards• Regulate activities (public and

private) • Green & Energy Building/Codes

(New Mexico case)

Florida Laws• Reduction of emissions to 2000 levels by 2017, to 1990 levels by 2025,

and by 80% of 1990 levels by 2050. • Florida adopted the California motor vehicle emission standards (22%

reduction in vehicle emissions by 2012 and a 30% reduction by 2016).• Building Efficiencies/Code, Chapter 553, F.S. increasing standards• HB 7123: Model Green Building Code (2007)• HB 697 (GHG reduction strategies in local government’s

Comprehensive Plan)• HB 7135 (State and Local Government Buildings “greener”)• HB 7179 (Property Assessed Clean Energy including wind resistance)• HB 7117 (New Energy Bill- 2012)• 2013: Nada on climate/small on energy (CNG)• Florida does not have much specifically on climate change and sea level rise

Other Florida Authority

• Local government Comprehensive Plans must based on “professionally accepted data”

• Coastal high hazard area planning (old concept new rationale) & evacuation policies

• Local mitigation strategies (required)• Conservation practices to improve air quality• Locating infrastructure to reduce the “energy”

associated with its delivery

What are FL Governments Doing?

Comprehensive Planning• New Comprehensive Plan Elements addressing Climate Change

and Energy- Monroe and Broward counties and others Code provisions• Freeboard initiatives- City of Treasure Island with 2’ freeboard

requirement above base elevation to improve FEMA’s Community Rating Score

Capital Improvements Planning• Miami Beach Stormwater Master Plan (20 year updated of capital

improvements) $200+ Million (use of “green alleys” and backflow preventers)

Regional Initiatives• Space Coast Climate Change Initiative (est. 2007)• SE Regional Climate Compact (est. 2008-2009)

Case Study- Monroe County Sustainability and Climate Plan

• Communications Strategy• Update Energy Baseline• Plan Development• Other Strategies:

–Use of Rating Systems (possibly including CRS for FEMA)

–Technical modeling and support

Basis for Concern

Two Approaches to Technical Modeling and Support

• Community engagement:– Use of COAST Modeling

approach and Catalysis Adaptation Partners

– Scenario development by Community

– Strategies developed to reduce risk

– Economic analysis of strategies

• County Assets (UGA SeaGrant):– Develop the “hard

questions” for data collection

– Use technical review team to run and customize models

– Generate results and make recommendations for policy and capital planning

Resources for Decision-Making

• Integrate final work products into decision-making (assumptions for the following):– Assumptions for infrastructure: Road

improvement projects & stormwater management

– Help designate vulnerable areas, adaptation action areas or other similar concept

– Land acquisition policies– Land development code provisions

Tool Data Created Basis for DecisionsNOAA Sea Level Rise and Coastal Flooding Impacts Viewer

Preliminary look at SLR and coastal flooding impacts.

Establishing priorities for vulnerable infrastructure

The Nature Conservancy's Coastal Resilience 2.0

Storm surge, sea level rise, natural resources and economic assets

Identify opportunities for green infrastructure solutions

FDOT tool (Florida Sea Level Scenario Sketch Planning Tool)

Inundation and affected transportation infrastructure layers

ID transportation facilities potentially vulnerable to climate trends

U.S. Army Corps of Engineers (FEMA and NOAA) Sea-Level Change Calculator

Site-specific detail on projected flood elevations for 5-year intervals from 2010 to 2100

Additional safety margins above FEMA requirements- best available elevation data

Planning as an Approach to Flood Insurance Rates

• Insurance will be a limiting factor in terms of where we live or “retreat” to-

• Insurance companies will start to “consider” prospective factors in rates such as sea level rise-

• Communities may be “forced” to implement mitigation and adaptation strategies in response-

• Tying planning process to FEMA’s Community Rating System so strategies result in tangible benefits to people-

• Multiple benefits of planning as an approach to address sea level rise-

Adaptation Strategies:Role of Takings

• Shifting rights and roles regarding property• Takings and adaptation strategies• Some of the new considerations:

vulnerability, inundation and risk reduction• Borough of Harvey Cedars v. Harvey

Karan (2013)– Evolution of rights (special and general

benefits)– Calculating benefits and just compensation

Erin@Deadylaw.com www.deadylaw.com