All posts tagged 'hurricanes'

Walking on Eggshell Skulls: Louisiana's Levees Take on the Oil and Gas Industry Over Coastal Land Degradation

July 24, 2013 20:20
by J. Wylie Donald
Ground zero for climate change and rising sea levels in the United States is not a status to which any state aspires.  Florida distastefully remembers 2005 when 4 hurricanes – Charley, Frances, Ivan, and Jeanne - roared ashore, all within six weeks.   Delaware worries that 8-11% of the state will be submerged by 2100.  Today we learned that Louisiana’s concerns over rising sea levels and hurricanes have resulted in an enormous lawsuit, Board of Commissioners v. Tennessee Gas Pipeline Co LLC, against 100 oil and gas companies based on their activities in Louisiana’s coastal lands over the last century, and the lands' ongoing demise.  “Unless immediate action is taken to reverse these losses and restore the region’s natural defense, many of Louisiana’s coastal communities will vanish into the sea.“  Complaint at 2. The plaintiff, the Southeast Louisiana Flood Protection Authority – East, is a governmental entity whose ”mission is to ensure the physical and operational integrity of the regional flood risk management system.”  To accomplish that end, it concluded that in order for Louisiana's coastal communities to survive into the next century it needed to restore and rejuvenate Louisiana’s coastal lands.  Its complaint explains how the system is supposed to work: 5.2 Coastal lands, including wetlands and marshes, are an integral natural complement to the Authority’s man-made flood protection system.  5.2.1.  Coastal lands are the first line of defense for south Louisiana’s communities against the destructive force of hurricanes.  5.2.2. Those lands form a buffer that reduces the height and energy of hurricane storm surge and waves, thereby aiding the Authority in its mission to protect south Louisiana. 5.2.3. Hurricanes lose intensity as they travel over land.  Hence, the more land that a given hurricane must traverse before reaching Louisiana’s coastal cities, the weaker that hurricane’s impact on those communities, and concomitantly, the more effective the levee system. Notwithstanding the coastal lands’ importance, they had been (allegedly) substantially degraded by the activities of oil and gas companies.  These companies had built a network of canals that was alleged to continue "to introduce increasingly larger volumes of damaging saltwater, at increasingly greater velocity, ever deeper into Louisiana’s coastal landscape and interior wetlands.  The increasing intrusion of saltwater stresses the vegetation that holds wetlands together, weakening – and ultimately killing – that vegetation.  Thus weakened, the remaining soil is washed away even by minor storms.”  Id. ¶¶ 6.7.1-7.2 With the loss of coastal lands, the levees stand to become “de facto sea walls,” a function the levee system is not designed for. Id. ¶ 5.11. The Authority’s complaint sets forth the regulatory framework for commercial work in the coastal lands.  First, there is the Rivers and Harbors Act of 1899, which forbids “any person to … in any manner whatever impair the usefulness of any … work built by the Uniteds States for the preservation and improvement of any of its navigable waters or to prevent floods.”  As noted above, the loss of coastal lands would lead to impairment of the levees struggling to serve as seawalls.  Second, Clean Water Act permits impose obligations for the maintenance and abandonment of canals, and for the minimization of environmental harm.  The permits, it was alleged, had not been complied with.  Third, the Louisiana State Land Office granted rights-of-way, which carried with them maximum right-of-way widths and obligations to minimize environmental effects and to indemnify the State for third-party damages.  The defendants' rights-of-way had all allegedly eroded and now exceeded their permitted size.  Last, state and federal Coastal Zone Management Acts imposed additional obligations.  Id. ¶¶ 9.1-9.4.  From that framework, the Authority argues a duty of care arises, breach of which by the energy companies supports a claim for negligence.  That claim is joined with claims for strict liability, public and private nuisance, third-party beneficiary rights, and a local favorite, natural servitude of drain.  Under the last claim it is asserted, damages and injunctive relief are owed because “Parties, such as Defendants, may not take actions that increase the flow of water across another party’s land, as the Defendants’ activities in Louisiana’s coastal lands certainly and demonstrably have done.”  Id. ¶ 23. Commentary already circulating quotes the plaintiff's attorneys on the potential damages at  “many billions of dollars.”  Although the damages are very large, many will look at this as just another wetlands preservation lawsuit.  We take a different perspective.  The destruction alleged took place over a very long time, by hundreds of entities, with the support of the commercial and political establishments of Louisiana.  The status quo in Louisiana was ongoing energy development in conjunction with degradation of coastal lands.  No one asserted that billions of dollars were owed.  What changed?  A fundamental tenet of this blog is that climate change will create winners and losers.  The losers are not going to go quietly; instead, they will look around and see if they can be made whole by someone else.  The first wave of climate change liability cases sought to tag the emitters of greenhouse gases with liability; they were uniformly unsuccessful.  Is Board of Commissioners the vanguard of the next wave targeting for liability those entities whose activities make defending against climate change much harder? There is a theory in tort about the eggshell skull.  As stated by the Seventh Circuit in Schmude v. Tricam Industries:  “If a tortfeasor inflicts a graver loss on his victim than one would have expected because the victim had some pre-existing vulnerability, that is the tortfeasor's bad luck; you take your victim as you find him.”  Here the Authority might not have done anything, or done it much later, had climate change not exacerbated the dire conditions faced by Louisiana.  Will Louisiana’s eggshell skull be a model for others seeking to be made whole for their losses from climate change?  Only time will tell.  In the meantime, visiting practitioners may wish to practice saying coquille d'oeuf.     

Climate Change | Climate Change Effects | Climate Change Litigation | Rising Sea Levels

A Tale of Two Credibilities: Hurricane Sandy and Recent Extreme Weather Reports

October 27, 2012 05:20
by J. Wylie Donald
It was the best of times.  It was the worst of times.  In North America, anyway.  As Hurricane Sandy looms over the Eastern seaboard, we thought it would be worthwhile to take a look at two recent reports about extreme weather.  Ceres, the investor focused “advocate for sustainability leadership,” issued in September its report:  Stormy Future for U.S. Property/Casualty Insurers:  The Growing Costs and Risks of Extreme Weather Events.  Munich Re, one of the world’s leading reinsurers, followed in early October with Severe Weather in North America.  If you want to read Severe Weather in full, it will cost you $100. If an executive summary will do, that only costs an email address.   Ceres’ report sets up the financial climate facing insurance companies today:  historically low investment returns, a sluggish economy,  and lagging economic performance as measured by return on equity.  It then recounts the vicissitudes of recent extreme weather.  In 2011 the insurance industry suffered more than $32 billion in losses, and “suffered the most credit downgrades in a single year since 2005.”  The federal government issued a record 99 disaster declarations. To get specific: Losses from excessive precipitation during 2008-2011 were the highest on record.Average annual winter storm losses have nearly doubled since the 1980s.Since 1980, wildfires burned the highest amount of acreage in 2005, 2006 and 2007; and in 2010, wildfires caused over $1 billion in damage (and in 2012 record setting wildfires occurred in Colorado and other parts of the West.).Losses from low precipitation (drought) during 2012 will be the highest since 1988. These cap a 30-year trend of increasingly extreme weather.  The effect of all this is, according to Ceres, a grave threat to insurers and those that rely on them.  Ceres goes on and asserts that climate change “likely” will exacerbate the effects of extreme weather.  Nevertheless, Ceres plays it cautiously:  “Connecting the linkages and impacts between rising temperatures and extreme events remains a highly technical exercise fraught with uncertainty.”  But notwithstanding the uncertainty, the cause of the potential economic problem for insurers is “increasing concentrations of insured assets, along with a changing global climate.”  Ceres' recommendations include calling for insurance companies to encourage customers to lower their carbon emissions footprint and to encourage "policymakers to take steps to reduce carbon emissions."  Is this unsupported advocacy or prudent business advice?  We conclude the former. We start with one of the central themes of Stormy Future:  the costs of extreme weather have been rising steadily over the last 30 years.  But as the report acknowledges, some part of the increase is due to the fact that there are more people, more infrastructure, and more buildings and other property than there were 30 years ago.  Even without any new extremes of weather the costs of weather-related disasters would have increased.  But Ceres offers no more than an acknowledgment.  There are no details to flesh out the relative contribution of extreme weather as compared to the contribution of increasing coastal populations and increasing property values. We discerned one hint.  In the last twenty years state subsidized insurance plans (so-called “residual” plans or state insurers of last resort) have expanded from $55 billion to $885 billion.  There would be no need for residual plans if people weren’t migrating to areas of higher risk, which for-profit insurers shun.   So with barely any data from Ceres, we went looking.  Professors Howard Kunreuther and his colleagues at the Wharton School had some interesting analysis in their 2009 work, At War with the Weather. Id. at 11.    When hurricanes from 1900 to 2004 are normalized for wealth (i.e., evaluating each hurricane’s impact if it had hit in 2004), the five hurricanes with the most impact occurred in 1926, 1992, 1900, 1915 and 1944. Hardly a trend for increasing extreme weather.  If Hurricane Katrina had been included, it likely would have topped the list, but that would have meant that the top five were 2005, 1926, 1992, 1900 and 1915, and still no extreme weather trend pops out.  Another researcher, Roger Pielke, Jr. has concluded similarly that there is no trend toward increasing extreme weather in the form of tornadoes.  It seems to us that Ceres should have assessed the impact of wealth concentration and population increase so that readers can reasonably conclude that climate-change-induced extreme weather is becoming an increasing substantial contributor to loss and not be forced to take Ceres at its word. Munich Re does better.  Severe Weather relies for its data on Munich Re’s NatCatService, which contains more than 30,000 records on natural catastrophe loss.  Based on a comprehensive review Munich Re concluded that extreme weather in North America has nearly quintupled in the last 30 years.  In Asia the increase is 4 times, 2.5 in Africa, 2 in Europe and 1.5 in South America.  This has resulted in increased losses.  Unlike Ceres, Munich Re recognized the importance of addressing the contribution of increasing concentration of wealth and population on rising losses.  The press release heralding Severe Weather  states:  “Up to now, however, the increasing losses caused by weather related natural catastrophes have been primarily driven by socio-economic factors, such as population growth, urban sprawl and increasing wealth.”  But the release goes on:  For thunderstorm-related losses the analysis reveals increasing volatility and a significant long-term upward trend in the normalized figures over the last 40 years. These figures have been adjusted to account for factors such as increasing values, population growth and inflation. A detailed analysis of the time series indicates that the observed changes closely match the pattern of change in meteorological conditions necessary for the formation of large thunderstorm cells. Thus it is quite probable that changing climate conditions are the drivers. The climatic changes detected are in line with the modelled changes due to human-made climate change. Munich Re concludes that this is the “ initial climate-change footprint” in US loss data from the last four decades. “Previously, there had not been such a strong chain of evidence.”  There it is:  losses are increasing independently of increases in wealth and population and climate change is a cause. As noted above, others disagree with this conclusion.  In fact, Munich Re has been slammed in the press and in the blogosphere for over-hyping the risk in the search for profits.   What the criticism misses is that Munich Re is putting its information out into the marketplace.  Consumers are free to accept or reject it.  Those choices ultimately end up being reflected in the bottom line.  This is our fundamental point about climate change and economic activity. Substantially all business decisions are made with some uncertainty.  Why would those involving a changing climate be any different?  The question to be asked is whether there is enough information to guide action.  Climate change is having effects.  We know this.  Why?  Simply because it is occurring.  And we also know it because of the mountains of evidence.  Prudent business people must think about how those changes will affect them.  Munich Re gives some answers.   We would submit that business planning based on Ceres’ report would not be prudent – Ceres leaves out a fundamental analysis:  what is the effect of increasing concentrations of wealth and population on the increasing loss trends from extreme weather?  Munich Re’s report, on the other hand, gives a decision-maker a tool that addresses that uncertainty.  One chooses not to listen at one’s peril.  Hurricane Sandy is the 18th named storm of this hurricane season.  If it lives up to its hype, it will be long-remembered.  But even if it does not, that does not change the business imperative:  plan with the best information available.  We would submit that climate change should be part of that planning. 

Climate Change | Climate Change Effects | Insurance | Sustainability

Hurricane Modeling Supports the Decision Not to Insure Hurricane Risks Rules the Maryland Court of Special Appeals

March 31, 2011 20:32
by J. Wylie Donald
"Catastrophic risk is different." So concludes an important opinion out of the Maryland Court of Special Appeals filed earlier this month.  In the case of first impression, People's Insurance Counsel Division v. Allstate Insurance Company, the court affirmed the primacy of models and business judgment in the writing of insurance, and further recognized that there is a "gaping difference between ordinary insurance risk and catastrophe risk." The case stems from the decision way back in 2006 by Allstate to advise the Maryland Insurance Administration (MIA) that it did not intend to write any new property policies in certain Maryland counties subject to heightened hurricane risk. As distilled by the court: "certain coastal areas bordering the Atlantic Ocean and the Chesapeake Bay presented an unusually high risk of loss in the event of a catastrophic hurricane. As a result, [Allstate] decided that it was no longer in Allstate's best economic interest to continue to write new property insurance policies in those areas." The MIA concluded that Allstate' business decision was properly made on "an obective basis and [was] neither arbitrary nor unreasonable." However, the state's public advocate, in the guise of the People's Insurance Counsel Division, concluded differently. Following a trip to Maryland's highest court, which confirmed the Division had standing to challenge the MIA's decision, the Division argued that Allstate's determination not to write property policies in certain geographic areas was arbitrary and unreasonable in contravention of Maryland Insurance Article § 19-107. Further, the Division argued that because Allstate had not shown that a hurricane would strike Maryland and that its rates were insufficient to carry that loss, the decision violated § 27-501. Section 19-107 To determine whether it wanted to undertake the risk of hurricanes along the Eastern Seaboard, Allstate retained Applied Insurance Research (AIR) to model the areas of the state and region that were catastrophe-prone, and those that were not.  It concluded that some or all of certain Maryland counties were at a substantially heightened risk of higher levels of hurricane damage than other areas. The model was explained:  "What it did, in order to get down to the zip codes, statistical level, generated the next year 100,000 times. That is, it's doing simulations of the next year, 100,000 times. And what they do in order to do that is they look at the last 100 years of meteorological data to try to come up with a probability of various hurricane strikes." In those 100,000 simulations AIR concluded that there would be eight hurricane strikes that would cause half a billion dollars in damage in Maryland alone. Because Allstate insured a substantial number of properties in these risky areas, it made the "business judgment that further growth at this time could jeopardize [its] anticipated long-term strength." The court quoted the Commissioner in holding that Allstate complied with the law:  "I conclude that Allstate's geographic designation of Hurricane Bands 4-6 had adequate factual support and, therefore, was not arbitrary or unreasonable. Allstate's hurricane bands were developed based on objective and reasonable factors, including modeled hurricane loss data, proximity to water and geographic contiguity. Through its use of the hurricane models, Allstate developed [Average Damage Ratios] ADRs at a zip code level. The higher the ADR, the higher the potential damage the area in the band is likely to sustain in the event of a catastrophic storm." Section 27-501 This section of the Insurance Article forbids an insurer from refusing a "particular insurance risk or class of risk" for "any arbitrary, capricious or unfairly discriminatory reason." The court first held that a decision to stop doing business did not address a particular individual or group of individuals; therefore, because Allstate's decision was "broad-based", section 27-501 simply did not apply. But even if it did, the modeling demonstrated that the decision was not unfairly discriminatory, arbitrary or capricious. The Division asserted that ""Allstate was legally required to show the probability of a catastrophic hurricane striking Maryland in order to justify its no-write decision."  The court was dismissive and characterized the Division's contention as "unreal". The issue faced by Allstate was very plain, syllogistic in fact:  THE ENTIRE EASTERN SEABOARD OF THE UNITED STATES IS AT RISK FROM HURRICANES.MARYLAND IS PART OF THE EASTERN SEABOARD OF THE UNITED STATES.THEREFORE, MARYLAND IS AT RISK FROM HURRICANES (capitals in original).  The court then went on to enumerate the details that the model considered such as historical hurricane reports, weather databases, and property values.  It came down firmly on the value of the model:  "Allstate's use of the AIR Hurricane Model V7.0 cranked out, zip code by zip code, predictive statistical data for 100,000 model years.  We are hard-pressed to understand exactly what more the Division could want." As to the Division's last argument (that prior Court of Special Appeals precedent required Allstate to demonstrate that its rate plan was insufficient to cover catastrophe losses) the court was scathing. Referring to the Division's argument as "fantasy analysis," it demonstrated that the precedent on which the Division relied suffered from a fundamental error in its understanding of the source materials and, as it "was wrong in 1987, ..., as it most assuredly was, it is still wrong 24 years later." The court concluded its analysis with a discussion of catastrophe risk.  It pointed out that for the usual risk, say fire or car accidents, insurers diversify their risk by taking on more insureds.  Where a catastrophic risk is present, however, taking on more insureds increases the risk to the insurer, rather than decreases the risk, because if the catastrophe strikes, all of the insureds will make a claim.  It concluded that catastrophic risk was "unique" and that case law that focused on individual insureds was completely irrelevant. People's Insurance Counsel is significant at a number of levels for those following climate change insurance issues.  First, the modeling data and results were unchallenged.  There are three dominant modeling companies (AIR, EqeCat and Risk Management Solutions) so the Division was not stymied here because Allstate's modeler had a lock on the market. More likely, it was recognized that while a different model might preserve coverage for a few zip codes, the models would not reach fundamentally different outcomes.  If the goal was to ensure that Allstate (and by extension all other insurance companies) could not abandon the front lines of hurricane risk, no model would show that Worcester County (on the ocean) would have a similar risk as Garrett County (at the headwaters of the Potomac). Businesses should take note.  In most businesses, profit is made at the margins.  Employing models to ascertain where the weather-related risks change their character could yield real monetary benefit - as Allstate demonstrated by giving up underwriting in only parts of some counties.   Second, AIR looked at historical weather records. It made no predictions about the future more severe weather called for in climate change models. This reluctance to face the future is not unique to insurance companies.  The Federal Emergency Management Agency takes the same approach in its analysis of flood plains.  We have written elsewhere concerning the head-in-the-sand mentality that afflicts many that are subject to altered climate change risks.  Catastrophe modeling is no different.  We await the case that tests the insurer's ability to rely not on what has happened in the past, but on what is predicted for the future. Third, there is (at the moment anyway) a great belief in the efficiency of the market in identifying the appropriate path for society.  The insurance markets are taking steps to halt the migration to the shore by determining not to insure it.  It remains to be seen whether governments will abide by those business decisions or force dislocations onto the market in order to preserve continued growth in hurricane-prone areas.  Maryland, for the moment, appears to be one state that is allowing the insurance market to shape the future of the shore.  As we have blogged before, other states (notably Florida), are not so laissez-faire.

Insurance | Regulation | Weather


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