Climate in the Courtrooms

The Northeast is expected to reach several milestones in sea-level rise and flooding well before other areas of the country. This region is expected to have the “largest temperature increase in the contiguous United States,” according the recent National Climate Assessment.  

“Providence County has the worst air quality in the Boston-Worcester-Providence metro area. It has an ‘F’ rating for high ozone days,” said Shaun O’Rourke, director of stormwater and resiliency for the Rhode Island Infrastructure Bank and Rhode Island’s chief resilience officer, referring to the rating given by the American Lung Association, which also gave F-ratings to Kent and Washington counties.

 

 

 

 

 

Providence and other urban centers are more vulnerable to the risks of increasing temperatures,
which have been
linked to a sharp increase in hospital emergency room visits according to a study
by Brown University and the Rhode Island Department of Health.

O’Rourke joined legal experts from around the country to discuss what communities are doing to address issues from air and water quality to infrastructure and natural environment, and their legal implications at the Marine Law Symposium held at Roger Williams University School of Law in November. O’Rourke pointed to the state’s new Climate Resilience Action Strategy, which has compiled risk assessments associated with climate change and provides a baseline for the state’s investment priorities, as an example of state efforts to help communities plan and prepare for new sea-level rise, storm surge, precipitation, and warming temperature projections.

Rhode Island’s Shoreline Special Area Management Plan (Beach SAMP) was also pointed to during the symposium as the first of its kind in the country to provide adaptation guidance for coastal communities. 

“One of the things we learned acutely was that the state can do everything in [its] power, but it really comes down to the municipalities who are often strapped for cash and resources,” he said, explaining that a lot of what needs to happen on the ground is primarily in the hands of the towns.

A study by Rhode Island Statewide Planning found that with 5 feet of sea level rise, which is projected benchmark for 2050, about 102 miles of roadway is expected to flood. Under current conditions, about 337 miles of roads are currently vulnerable to a 100-year storm event. The majority of these roads, said O’Rourke, are owned by the towns. This presents not only an engineering, personnel, and financial problem for the towns, it also presents a potential legal issue.

“How many municipalities, asset owners, and utilities are going to deal with that increased liability that climate change is going to be presenting?” asked O’Rourke,

Part of that liability will be evaluated by how much is already known about the climate and how it’s changing.

“The increasing public recognition and discourse around climate change and its impacts lends itself to this concept of foreseeability,” said Deanna Moran, Director of Environmental Planning at the Conservation Law Foundation.

She explained that because the science has progressed with more accurate climate data and sophisticated tools to better assess the risks not only on large scales but on small scales relevant to towns, the knowledge is there to foresee potential harm resulting from climate change. “We’ve already seen that explored [as a way] to compel climate mitigation in the reduction of greenhouse gases.”

Lawsuits that have been brought against fossil-fuel companies have so far been unsuccessful, in part, said Moran, because the court sees the issue as a legislative one related to regulation, which is not the court’s role. However, given all of the data and scientific knowledge at hand, both the Conservation Law Foundation and the state of Rhode Island have pending lawsuits against fossil-fuel companies for impacts of climate change, with Rhode Island being the first state to seek compensation for damage to infrastructure and coastal communities attributed to climate change.

Fishermen on the West Coast are also seeking compensation in a pending case against fossil-fuel companies, alleging that their emissions increased water temperatures that caused blooms of toxic algae with devastating effects to the dungeness crab and shellfish industries.

While these lawsuits are seeking accountability from fossil-fuel companies for the causes of climate change, many cases are highlighting accountability for adaptation actions to address the impacts of climate change.

“So now we’re seeing a shift toward whether or not litigation can be used as a lever for action on adaptation,” said Moran.

In Chicago, for example, millions of homeowners filed for insurance claims after a record flood in 2014. The insurance company sued the city and surrounding communities for being negligent, alleging they failed to prepare for that level of rainfall. They pointed to the city’s climate action plan that identified defects in the stormwater management system and climate modeling that predicted that level of rainfall as likely to occur.

The case was dropped by the insurance company soon after it was filed, “but it definitely created a stir in the legal community and municipalities of the risk of this kind of lawsuit,” said Elena Mihaly, staff attorney for the Conservation Law Foundation.

“Our understanding of climate change impacts is increasing and as a result, so, too, is the government’s general duty of care. Ultimately, liability will depend on the specific facts and whether exceptions apply.”

With regard to liability, a court has yet to find fossil-fuel companies the only contributor of climate change to bare all of the responsibility and has ruled in past cases that it’s a regulatory issue for legislation. But for governments to take liability for the impacts of climate change, one must get around  “sovereign immunity.”

This essentially means that governments and government officials working in their official capacities are generally protected from a variety of lawsuits, but especially as a defense against negligence claims so that they can perform their jobs without being fearful of litigation at every turn, said Mihaly.

But there are exceptions to those exceptions when seeking a negligence claim. In Rhode Island, these exceptions apply to cases where the government or a business created a dangerous situation and/or there was a special obligation to the plaintiff resulting from prior contact with a government entity concerning the issue at hand.

And every state applies varying exceptions to what governments and businesses can be held accountable to with regard to perceived negligence for damage both as the result of actions and inactions. Governments are typically immune when their actions are in the interests of public health and safety, “which many adaptation measures are if they’re worded the right way,” said Mihaly.

The Town of South Kingstown was held accountable for not compensating a landowner when a new zoning ordinance to create a “high flood danger” district prohibited the construction of single-family dwellings in that zone. The court, said Mihaly, ruled that this was a scenario where the landowner had to be compensated because the result of the regulation rendered the property completely useless.

“The court also looks at the character of government action,” she added. “The court in the South Kingstown case noted that the purpose of this zoning ordinance was to preserve barrier beaches, which was characterized as an environmental goal as opposed to a public health and safety goal.”

She compared the case to a similar one in Massachusetts where the town wasn’t held accountable for a takings claim because its actions were directly linked to public health and safety in relation to high tides and flooding, and the regulation didn’t render the land completely useless.

Claims can also arise from inaction such as failing to maintain roads, bridges, or other infrastructure damaged by storms and flooding.

A series of chemical fires erupted at a Texas chemical plant after it was flooded with 6 feet of water by Hurricane Harvey last year. The electric backup generators failed for refrigerators storing toxic chemicals, which released noxious fumes into the surrounding area. As a result, 20 people were injured and 200 were forced to evacuate their homes.

The county and the state of Texas sued the chemical plant for failing to take precautions ahead of a severe storm, though the company argues that the situation was too rare of an event to be reasonably prepared for.

“A lot of the preparation and planning for the plant had been based on what it experienced historically… so it raises the questions of what is foreseeable, and this suit may help tease that out,” said Dena Adler, a law fellow at the Sabin Center for Climate Change Law at Columbia Law School.

Flooding also raises other legal issues concerning development along the coast.

“One of the key challenges is repetitive loss properties,” said Adler. “These are homes that are caught in a cycle of flood-build-repeat.”

While these properties represent less than one percent of all the homes covered by the National Flood Insurance Program, they account for nearly 10 percent of all damage claims, rounding out at $5.5 billion dollars for repairing or rebuilding. These properties aren’t exclusively coastal, but the majority are, she said.

“It eats up a lot of taxpayer dollars that maybe could be spent in other ways to help reduce the risk to homeowners,” she added. “The program is in danger because of climate change and because of the growing number of these types of properties.”

Despite the inherent risks of coastal hazards, only 29 states require that potential buyers be made aware of risks from flooding and storm damage, and only 10 require the disclosure of previous flooding.

The legal implications of climate change, both inland and along the coasts, run the gamut from foreseeing harm and taking adaptation actions to disclosing risks, takings claims, and implementing managed retreat.

“Ultimately, we need to engage deeply with the community,” said Thomas Ruppert, a coastal planning specialist with Florida Sea Grant. “It doesn’t matter how many legal solutions we come up with because they’re going to be costly and difficult decisions to make. There’s never going to be political will without people understanding.”

 

This symposium is co-sponsored by the Marine Affairs Institute at Roger Williams University School of Law and the Georgetown Climate Center.