Climate Change Effects

In Response to Sea Level Rising At Double the Global Rate, Delaware Debates Whether to Accommodate, Avoid, Protect or Retreat

February 20, 2013 14:07
by J. Wylie Donald
On February 19, 2013, the Delaware Sea Level Rise Advisory Committee ("DSLRAC") held the second of three "public engagement sessions" to solicit public comment on a list of 61 "Options for Preparing Delaware for Sea Level Rise". These public engagement sessions are part of the second phase -- focusing on adapting to sea level rise -- of the DSLRAC's mission. The first phase focused on the preparation of a comprehensive assessment of Delaware's vulnerabilities to sea level rise. The Vulnerability Assessment modeled the effects of three potential sea level increases by the end of the century - 0.5 meters (1.6 feet), 1.0 m (3.3 feet) and 1.5 m (4.9 feet) from mean higher high water - and identified state resources that were vulnerable to sea level rise. The state resources considered were broadly divided into three categories: natural resources; society and economy; and public safety and infrastructure. Within these broad categories, the vulnerability of 79 specific resources to sea level rise was examined, of which 16 were determined to be of high concern statewide: dunes and beaches; coastal impoundments; dams, dikes and levees; evacuation routes; freshwater tidal wetlands; future development areas; habitats of conservation concern; heavy industrial areas; the Port of Wilmington; protected lands; roads and bridges; railways; tidal wetlands; tourism and coastal recreation; U.S. Fish and Wildlife Service Refuges; and wells. The models did not include any effects from storm surge or increased storm intensity, and thus the effects are arguably conservative for each of the three modeled sea level increases. Even so, the Vulnerability Assessment found that all three of Delaware's counties would be directly affected by sea level rise, and 8-11% of the entire state's land area would be permanently flooded (at the public engagement session a tax assessed value of $1.5 billion was estimated for the land which will potentially be flooded). (Full Vulnerability Assessment).Delaware's vulnerability to sea level rise is a function not only of its coastal location and economy, but also because sea level rise is occurring faster in Delaware than elsewhere. Currently the global rate of sea level rise used by the DSLRAC (from the International Panel on Climate Change (IPCC) estimates) is 0.07 inches per year, or 7 inches per century (not considering any increase in that rate in the future). However, in Delaware the sea is currently rising at a rate of 0.13 inches per year (13 inches per century), or almost double the global average. This is occurring, in part, because the part of the earth's crust under Delaware is sinking. (Simplistically, during the last ice age some regions were depressed by the weight of the glaciers, while Delaware was not depressed by such heavy glacial coverage and as a result was raised up relative to other regions. This process is now reversing as other regions rebound upward, while Delaware settles downward.) Thus, in Delaware not only are the seas rising, but the land is literally - although slowly - sinking. (See Vulnerability Assessment at 7-8). With the key vulnerabilities identified, the second phase of the DSLRAC's mission is focused on strategies for adapting to the effects of sea level rise. The DSLRAC has identified four broad strategies: to accommodate sea level rise; to avoid sea level rise; to protect resources form sea level rise; or to retreat from sea level rise. Within these broad strategies - which the DSLRAC does not view as mutually exclusive - are 61 specific options. These range from the very broad - "Increase opportunities for technology transfer and regional coordination for transportation issues affected by sea level rise" (Option 2); "Create new partnerships to increase resources for research and development of adaptation options" (Option 6); "Create a coordinated effort to provide technical assistance to local governments" (Option 56) - to the relatively specific - "Provide sea level rise information to the Delaware Agricultural Land Preservation Program" (Option 7); "Encourage the establishment of a sea level rise group within the American Association of State Highway Transportation Officials (Option 9); "Add additional tidal observation stations in Delaware" (Option 54).Some of the original proposed options have already proven controversial. For example, Option 33 - "Develop a comprehensive outreach strategy to educate public about sea level rise" - was revised to eliminate a reference to educating public school students about climate change and sea level rise. This revision was reportedly made after objections from the Positive Growth Alliance (which is reported as having described such education as "brainwashing") and the Homebuilder's Association of Delaware (which is reported as questioning the "targeting" of children). Another option would require property owners selling property inside zones predicted to be inundated under a specific sea level rise scenario to disclose that vulnerability to potential buyers (also discussed here). This was met with concern that it might negatively affect sales of or the availability of mortgages for such properties, particularly as some stakeholders questioned the three modeled sea level rise scenarios (0.5 m, 1.0 m, 1.5 m) as "speculation" (click here). (It is worth noting that the scenarios modeled by the DSLRAC are generally in line with the recently issued National Climate Assessment (see National Climate Assessment.)As Delaware considers whether to accommodate, avoid, protect or retreat from the consequences of sea level rise, the Options put forward by the DSLRAC serve as an excellent point of discussion. Option 24 - "Develop a statewide retreat plan" - will undoubtedly contribute to that discussion, if not controversy. Given recent retreat oriented developments in other jurisdictions, such as the recent proposal of Governor Andrew Cuomo of New York to use federal disaster funding in the wake of "Superstorm Sandy" to buy out certain willing homeowners (click here) or the determination in the Netherlands - experts in keeping the sea out - to begin letting the sea back in (click here), an honest and complete discussion of how to engage in retreat, before any retreat is necessary, may be entirely prudent. Whether such a discussion is politically palatable is another question entirely.

Climate Change | Climate Change Effects | Insurance | Rising Sea Levels

A Theory of a Moveable Parcel is Not the Legal Solution to Rising Sea Levels and Beach Front Ownership

February 11, 2013 20:55
by J. Wylie Donald
The Massachusetts Supreme Judicial Court weighed in on an ugly property rights case last Friday concerning some beautiful beachfront on Martha’s Vineyard.  In White v. Hartigan, SJC 11072 (Feb. 8, 2013), the Court considered whether a deed conveying “the beach” in 1841 sufficed to give the plaintiffs title to “the beach” in 2004, notwithstanding that in the intervening century and a half the original beach had vanished beneath the waves.  The Court had little difficulty concluding that, absent an express grant of a moveable parcel, no moveable parcel existed and the plaintiffs’ claims were properly dismissed. In the case, the Norton and Flynn families, tracing their property rights back to the same scion, enjoyed each others’ company for over a century as upland property owners in a corner of Martha’s Vineyard (near Edgartown for those familiar with the island).  But bosom friends may not stay best friends forever.  Such was the case here and they had a falling out.  Among other things, in deeds conveying parcels of the Norton family property, a reservation was made claiming fractional rights in the beach identified in the 1841 deed, notwithstanding that that beach no longer existed.  That was of no matter claimed the Nortons; “they maintain[ed] that their predecessors in title created a beach parcel with a moveable northern boundary that shifts with the landward migration of the beach.”  The Flynns contested this theory and the Nortons sued. The basis for the Nortons’ claim was that “the deeds in their chain of title contain either no landward (northern ) boundary or reference as a landward boundary only moveable natural monuments, thereby creating a moveable parcel.”  The Court was “not persuaded.” Although the seaward boundaries of property on the littoral might be moveable, the landward boundary was not.  To hold otherwise would promote instability of property rights and would be inequitable to upland property owners who (if the moveable property boundary rule applied) would have no opportunity for the benefit of accretion to seaward, but would bear all the risk of erosion from the sea. Nor did the language of the original 1841 deed help the Nortons’ cause.  The case law was clear that references to impermanent monuments or boundaries did not establish a moveable boundary line.  Instead, “the boundary ‘must be taken to refer to the condition of the land at the time the deed was given.’”  The Nortons’ 1841 boundary of arable land and ponds was ascertainable and their beach parcel was under water. This ruling was certainly not groundbreaking, but it is significant nonetheless.  The precedents relied on by the Court were of an era where rising sea levels raised no concerns.  To be sure, erosion occurred, but no one considered that long-term (even perpetual) submergence might be a more accurate description of what was going on at the shore.  Not so today.  One can find, for example, maps of how sea level rise will specifically affect Martha’s Vineyard.   And Boston has a new report released just last week, Preparing for the Rising Tide.    One prediction of a response to sea level rise will be the evolution of the common law to protect society’s interests.  As Oliver Wendell Holmes, Jr. wrote in 1888 in The Common Law: The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree towhich it is able to work out desired results, depend very much upon its past. The Nortons’ theory of a moveable parcel to protect their interests from seaside erosion, could just as easily be applied to seaside submergence.  In either case, however, the common law does not suggest their remedy.  The past does not lead to their desired result; nor, apparently, does Massachusetts’ highest court find it convenient.  

Climate Change Effects | Rising Sea Levels

Call for Comments on the Third National Climate Assessment

February 1, 2013 21:46
by J. Wylie Donald
The draft “National Assessment of Supply Chain and Other Developing Risks” was issued just last month. It outlined increasing threats to infrastructure, food and water supplies, air quality, national security, public health and public safety, and ecosystems. It also discussed measures to reduce those risks and to address them. In short, the Assessment should be required reading for everyone involved in planning a company's response to the things that could destroy the company. Only it won't be because of one small detail. That title, the "National Assessment of Supply Chain etc.," is a fabrication.  The real title is the draft Third National Climate Assessment Report (Assessment).  (It's 147 MB so here's the Executive Summary too.)  Thus, for many companies, the report will be shunted to the EH&S office and the C-Suite will remain oblivious. This is unfortunate. "National climate assessments act as status reports about climate change science and impacts."  Their legal basis is the Global Change Research Act of 1990 (codified at 15 USC §§ 2921-61), which mandates periodic reports to the President and Congress evaluating the findings of the U.S. Global Change Research Program (USGCRP).  Under the USGCRP the effects of global change (not just climate change) on all facets of the nation (including agriculture, energy, water resources, human health and ecoystems) are analyzed.  Trends are reviewed and projected for up to 100 years.  “The NCA aims to incorporate advances in the understanding of climate science into larger social, ecological, and policy systems, and with this provide integrated analyses of impacts and vulnerability.”  The last National Climate Change Assessment was in 2000. What is particularly rewarding in the Assessment is that it gets right down to the nitty-gritty.  We have picked only one topic to focus on, Transportation, but one could take a deep dive in over a dozen.  Ports are obviously at risk from sea level rise, but some might think that is manageable because sea level is only changing gradually, even if the worst predictions are accepted.  If it were only that simple.  "When sea level rise is coupled with intense storms, the resulting storm surges will be greater, extend farther inland, and cause more extensive damage."  Draft at 200.  Even without sea level rise, the increase in extreme weather and flooding will result in increased sedimentation.  "Channels that are not well maintained and have less sedimentation storage volume will thus be more vulnerable to significant, abrupt losses in navigation service levels."  Id.  Climate change predictions also include increasing temperatures, but so what?  The Assessment offers the following:  "expansion joints on bridges and highways are stressed and asphalt pavements deteriorate more rapidly at higher temperatures.  Rail track stresses and track buckling will increase.  Lift-off limits at hot-weather and high-altitude airports will reduce aircraft operations."  Draft at 197.  Each of these conclusions is referenced to research.  Airports too are not out of harm's way.  Thirteen of the nation's largest airports have at least one runway within 12 feet of current sea level.  Draft at 201.  Readers will remember that the storm surge from Sandy was 14 feet in New York.  Draft at 203.  They may not remember that the storm surge from Katrina was 15 feet along the entire Mississippi coast, and much higher in some places (like an "astonishing 27.8 feet at Pass Christian, Mississippi").  Our business is not freight forwarding or overnight delivery but we bet that those running such businesses pay close attention to the reliability of their transportation routes.  If supply chains matter, one needs to be looking at roads, rails, ports and airports, and we mean locally, as well as abroad. The Assessment is a trove of information and provides citations to the vulnerability studies of numerous cities and states, including Boston and New York City, California, Iowa, Massachusetts, Michigan, Washington, and Wisconsin, which have already begun assessing their transportation vulnerabilities.  Draft at 209.  Although there is a lot of information out there, the Assessment also sounds a note of caution in preparing:  "Impacts of climate on transportation system operations, including safety and congestion, both on road systems and in aviation, have been little studied to date."  Draft at 213.  "[E]xisting models used for snow and ice removal procedures are no longer reliable, requiring better monitoring and new models, as well as better roadway condition detection systems."  Draft at 211.  This uncertainty, however, should not be a reason to do nothing.  As the Assessment states, preparation helps a lot:  " the vulnerability analyses prepared by the metropolitan New York authorities [prior to Sandy] provided a framework for efforts to control the damage and restore service more rapidly."  Draft at 204. Another approach taken by the Assessment is to comment on the impacts from climate change that can be expected in various areas of the country such as more hot days, or more heavy precipitation (or more drought depending on location). For businesses that don't include weather considerations in their planning, the Assessment won't change anything:  heavy rains have come since the dawn of time and humans have responded. But for those that do any sort of weather preparation and planning, the Assessment points out what extreme weather means, and thus suggests what steps might be worth taking. For example, torrential rains from Hurricane Irene in Vermont damaged over 500 miles of state-owned roadways and 200 bridges. Draft at 554.  Some communities were isolated for days. Id. Why should people in the Northeast take notice?  Because "between 1958 and 2010, the Northeast saw a 74% increase in the amount of precipitation falling in very heavy events." Draft at 551. In other words, the fate of Vermont is increasingly likely to be the fate of others. And this is a fundamental feature of climate change.   "Climate change is statistical weather, and manifests itself as a change in the frequency of events that would still occur (but with lower frequency) in the absence of climate change."  Draft at 218. The risk of untoward events is increasing. No one will be able to point to a flood or a hurricane or a heat wave and say this is climate change-related. But that is not necessary, or even relevant. As the risk increases, prudence requires that one spend more time and expense thinking about and countering the risk.  The Assessment is a good place to start.  And a good first step to start one's thinking would be to submit comments on the report.  The deadline is April 12.

Climate Change | Climate Change Effects | Rising Sea Levels | Weather

Delaware Advisory Committee Suggests Mandatory Disclosure of Rising Sea Levels in Real Estate Contracts

January 14, 2013 14:09
by J. Wylie Donald
If the State dropped a notice in the mail advising you that 10% of your property was going to be condemned without compensation, you would immediately hire a lawyer, seek out the press and raise holy **** about the trampling of individual rights, justice and the Constitution. That is the situation in which Delaware contemplates finding itself, but the Constitution is no salve.  Rising sea levels of between 0.5 and 1.5 meters are predicted to inundate between 8% and 11% of the state's land area by 2100. Delaware, however, is not one to tear its clothes and beat its chest in lamentation; instead, it is acting. Last July, the Delaware Sea Level Rise Advisory Committee published Preparing for Tomorrow's High Tide:  Sea Level Rise Vulnerability Assessment for the State of Delaware. Besides providing background about sea level rise and the methodology of vulnerability determinations, it looked at 79 resources in the state and assessed the impact of rising sea levels. Sixteen of those resources were assessed as being of high concern statewide. To quote the Executive Summary: "Within those potentially inundated areas lie transportation and port infrastructure, historic fishing villages, resort towns, agricultural fields, wastewater treatment facilities and vast stretches of wetlands and wildlife habitat of hemispheric importance." "[E]very Delawarean is likely to be affected by sea level rise through increased costs of maintaining public infrastructure, decreased tax base, loss of recreational opportunities and wildlife habitat, or loss of community character." From roads to wetlands to tourism, Delaware now has a basis to marshal its resources, and its polity, and move forward into the next phase:  adaptation planning. The United Nations Framework Convention on Climate Change defines "adaptation" thus: "Adaptation refers to adjustments in ecological, social, or economic systems in response to actual or expected climatic stimuli and their effects or impacts. It refers to changes in processes, practices, and structures to moderate potential damages or to benefit from opportunities associated with climate change."  Delaware's focus is to "identify ways that government, businesses and citizens can adapt their policies and business practices to reduce the impact of seal level rise on our state's citizens, economy, and natural resources." The committee has wasted little time in taking action on the vulnerabilities identified in July. As reported in Delaware Online, last Thursday the committee offered up for public comment this question:  "whether property owners selling inside boundaries where seas are predicted to rise will have to disclose that vulnerability to potential buyers."  Hearings will begin in February.  Currently, disclosure of a property's location in a flood zone is required, but flood zones are based on the historical record. Requiring a disclosure about a prediction for the future is new. One can quickly see a few of the implications. First, all things being equal, some will be dissuaded from purchasing, demand will drop and prices will fall. How much and when is anybody's guess.  Second, the drawing of the sea-level-rise boundary may be intensely litigated. Indeed, we have already seen one ocean front property rights case, Stop the Beach Renourishment v. Fla. Dep't of Envtl. Protection, 130 S. Ct. 2592 (2010), make its way all the way to the Supreme Court. Third, realtors, real estate lawyers and other professionals involved in shore transactions will be pleased by this development as the liability for non-disclosure will be much harder to pin on them.  An injured property owner likely will find it difficult to assert an adviser's failure to disclose the risk was the proximate cause of his or her injury.  See J. Wylie Donald, Getting Ahead of Storm Surge, Especially in the Era of Climate Change.   Fourth, and perhaps most significantly, this small step will set the stage down the road when questions of compensation arise for individuals and entities harmed by rising sea levels. Buyers with such a disclosure in their contracts will be hard-pressed to claim ignorance. That in turn is likely to figure into the public discussion of fairness and the right to compensation. Of course, the committee's raising the point for discussion does not mean anything is going to change.  But, with the dialogue initiated, we expect that this issue will no longer be quietly ignored.  In any event, we look forward to further discussion in February.

Climate Change | Climate Change Effects | Regulation | Rising Sea Levels

Will Climate Change Considerations Affect Rebuilding After Sandy? The Short Answer is Yes.

November 27, 2012 08:51
by J. Wylie Donald
West Virginia today and Virginia yesterday became the seventh and eighth states to obtain the benefits of a federal Major Disaster Declaration in connection with Superstorm Sandy.  They follow New Jersey, New York, Connecticut, Rhode Island, Maryland and Delaware.  What does that mean?  Money.  Lots of money.  A key question will be whether that money goes to improving the resilience of the community for the next severe storm. As the FEMA announcements point out, eligible state and local governments may obtain: • Payment of not less than 75 percent of the eligible costs for removing debris from public areas and for emergency measures, including direct federal assistance, taken to save lives and protect property and public health • Payment of not less than 75 percent of the eligible costs for repairing or replacing damaged public facilities, such as roads, bridges, utilities, buildings, schools, recreational areas and similar publicly owned property, as well as certain private non-profit organizations engaged in community service activities.• Payment of not more than 75 percent of the approved costs for hazard mitigation projects undertaken by state and local governments to prevent or reduce long-term risk to life and property from natural or technological disasters.  However, if improvements are desired, “[f]ederal funding for such improved projects shall be limited to the Federal share of the approved estimate of eligible costs."  44 CFR 206.203(d). Discerning readers will have latched on to “eligible costs” as the essential criteria of the payments. What are they?  The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207, makes that clear and it is not a good result.   Under the Stafford Act, eligible costs are “[based on] the design of the facility as the facility existed immediately before the major disaster; and (ii) in conformity with codes, specifications, and standards … applicable at the time at which the disaster occurred.”  42 USC 5172(e)(1)(A).  In other words, to put it in the words of Sean Reilly, a Board member of the post-Katrina Louisiana Recovery Authority, “Under the Stafford Act, you pretty much are relegated to building it back the way it was. You get the depreciated dollar, and you get a vision that says, 'OK, that was a 40-year-old building; let's rebuild a 40-year-old building.'”  But surely improved building codes or zoning requirements are covered?  They are, but only if they were in place before the calamity.  The regulations provide:  “For the costs of Federal, State, and local repair or replacement standards which change the predisaster construction of facility to be eligible, the standards must:  [among other things, be] formally adopted and implemented by the State or local government on or before the disaster declaration date.” 44 C.F.R. 206.226(b)(3)(i). One might justifiably be concerned that states and communities are being condemned to repeat the mistakes of the past.  But there is a path to succor:  hazard mitigation by the FEMA Regional Director.  “Hazard mitigation” is “any cost effective measure which will reduce the potential for damage to a facility from a disaster event.” 44 CFR 206.201(f).  Under the regulations, the Regional Director is authorized to “require cost effective hazard mitigation measures not required by applicable standards. The cost of any requirements for hazard mitigation placed on restoration projects by FEMA will be an eligible cost for FEMA assistance.” 44 CFR 206.226(c).  That is, pre-disaster rules and codes are not the only game in town. If a state or municipality rebuilding from Superstorm Sandy wants federal dollars to help it anticipate the exigencies of the future, the FEMA Regional Director must be part of the dialogue. The future is a changing climate.  Thus, the dialogue will almost certainly include climate change adaptation.  Indeed, the Natural Resources Defense Council and the National Wildlife Federation filed a petition in October seeking to have FEMA explicitly require that climate change be considered in the preparation of state hazard mitigation plans. Connecticut and California already do so and FEMA Administrator Fugate appears to be on board.  As he stated in February of this year: "When I talk about climate resilience, I’m talking about how we need to forcefully communicate the risk we face in not building resilience to climate change at the local level, which might not have been in anyone’s experience previously ….  We cannot afford to continue to respond to disasters and deal with the consequences under the current model.  Risk that is not mitigated, that is not considered in return on investment calculations, oftentime steps up false economies. We will reach a point where we can no longer subsidize this.” A premise of the NRDC and NWF petition is that "If states receive federal funds for their disaster mitigation efforts, national taxpayers have a right to demand that the states engage in thoughtful planning to reduce the ultimate federal cost."  We think few would disagree with that.  We likewise think, as the petitioners do, that climate change needs to be part of the plan.

Climate Change | Climate Change Effects | Regulation | Weather

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

If You Want More Climate Change Clients Do This

September 18, 2012 20:00
by J. Wylie Donald
We were in New York City today at a conference, Cooling on Climate Change: Designing the Message, sponsored by the Urban Green Council.  The conundrum to be unlocked was:  how come something as serious as climate change doesn't have politicians and the public standing in line to solve the problem?  The answer is obvious to trial lawyers:  even with the most compelling facts, if you don't have the jury emotionally, the result is likely to come out wrong.  Similarly, and the point of this article, clients may be very concerned about certain effects caused by climate change, but if the effects are wrapped in the gospel of climate change, you may be ineffective in communicating your ability to serve them. Opening the conference was Jim Hansen.  His credentials as one of the first scientists to sound the alarm and his dogged advocacy (even in the face of some heavy-handed muzzling by the second Bush administration) make him an advocate emeritus in some climate change circles.  Dr. Hansen noted that there is a huge gap between what scientists know and what the public knows.  There can be no dispute that the planet has warmed 0.6 degrees (C) in the last 30 years; that recent extreme summer heat events have covered 10% of the  earth's land area, where previously it was only .2%; that Arctic summer sea ice is reduced in extent by 50% and that the incidence of wildfires has increased 30-fold in the last 30 years.  He concludes that the fossil fuel industry is subsidized in that it does not pay for all the costs associated with the use of fossil fuels. He proposed a fee and dividend system where all fossil fuel producers are taxed at the production site and the tax is rebated directly to every citizen; the government would not keep a penny.  His system is transparent, market-based, stimulates innovation, does not enlarge government and leaves energy decisions to individuals.  He described his plan as conservative.  We think some will differ on that, perhaps because his compelling facts do not (as we will explain) compel. Next up was Elliott Diringer, of the Center for Climate and Energy Solutions (formerly the Pew Center on Global Climate Change, which was characterized by the University of Pennsylvania as the world's leading environmental think tank).  After explaining the fundamental characteristics of the climate issue (among other things, it cannot be solved by one nation; most severe impacts are not here and not now; and the precise impacts and costs of action or inaction are not known), he noted the messages of both sides.  Those wishing to take action highlight the risks of inaction and promote the benefits of taking action such as "green" jobs, improved American competitiveness and national security, improvement in public health and intergenerational fairness.  Those opposed to action have discredited the science as politicized.  They exploit the uncertainties in the science and the uncertainty of future benefits.  They argue for fairness as China and India are not limiting their emissions and hold up the spectre of a world government and threats to national sovereignty.  After discussing the role of scientists in communicating the climate change message (he advocates for trusted non-scientist validators) and criticizing the media for always seeking "balance" when objectively there is no debate on many climate change topics, he came up with six "messages to the middle": 1.  Climate Change is here and now.2.  The costs of climate change are here and now and are growing.3.  Prudent risk management requires both mitigation and adaptation.4.  The upfront costs are sensible investments.5.  Acting now can have real benefits for public health and energy security.6.  The transition to a low-carbon economy is an economic opportunity.  Lisa Fernandez of the Yale Project on Climate Change Communication spoke next.  She offered the statistics on public perception of climate change.  Since 2006 polling shows a sixteen point decline in the public's belief that climate change is happening.  Public support for addressing climate change was highest in 2006, the time of An Inconvenient Truth, the IPCC's continuing work and a robust economy.  Moving forward four years to 2010, the economy had tanked, "ClimateGate"  had occurred and the vaunted Copenhagen summit had failed to deliver.  Ms. Fernandez noted the perception that there is a lot of disagreement among scientists -- even though there is no debate among the majority of scientists.  There is a 98% consensus among scientists that climate change is happening and is in part anthropogenic.  She stated that research shows that in order for people to support action they need to be convinced that climate change is real, needs action, is solvable and is caused by humankind.  She concluded, however, that knowledge is necessary but not sufficient.  A striking statistic was that the proportion of respondents denying or dismissing climate change rose from 7% in 2006 to 26% in 2010.  Ms. Fernandez closed with more surveys on the need to tailor any message; one size certainly does not fit all. All of which set the table for David Ropeik, an expert on risk perception, communication and management.  Mr. Ropeik laid it out quite simply.  There are multiple features of thinking that determine how we perceive risk.  Most of these are in the subconscious. From the most basic neural pathways (responding to fear is hardwired into our brains) to our need to belong to our community to mental shortcuts that "fill in the blanks", each and all of these stand in the way of a rational response.  Until we understand that, we can have all the facts in the universe and may still fail to take action or even deny that action needs to be taken.  That you are reading this article demonstrates the validity of Mr. Ropeik's approach. Our title is something a sideshow barker might announce, triggering your preconceptions, hopes, and curiosity. Maybe you had some views about the veracity or utility of the author's perspectives. One thing you certainly did not have was any factual information about what the article would contain. But here you are anyway looking for what to "do" to get more climate change clients. Maybe the right way to sell climate change services is not even to mention climate change.  A speaker on the second panel, Daniel Probst of property manager Jones Lang Lasalle, completely agrees.  His clients are doing many of the things advocates for climate change action support but their incentive is not to save the planet.  They are improving the environmental performance of their buildings (the source of 40% of US CO2 emissions) because doing so saves them money, allows them to charge higher rents, reduces turnover, improves employee productivity and makes permitting easier.  Approaching clients on those topics unloads the controversy associated with climate change.  For some, that is exactly what will be needed to close the sale.  But for others, they will want the big picture and will value the "marketing to the middle" promoted by Mr. Diringer.  Neither approach will be right all of the time, but all of the time is not the metric.

Climate Change | Climate Change Effects | Green Buildings

You Want Hantavirus With That View? Contagion Clouds the Air at Yosemite

September 13, 2012 09:03
by J. Wylie Donald
Nasty diseases like Ebola and SARS are not something one picks up in the good old USA, particularly at a national park, like, say, Yosemite.  Well that would be wrong.  Three visitors have died this summer from something called the hantavirus.  Infectious disease specialists have localized the most likely cause to a rustic tent site in Curry Village, popular with visitors to the park. Hantavirus is transmitted through the aerosolization of infected rodent feces and urine.  The mortality rate is about one in three. This is not good. You may be saying this is all very interesting, but hardly the subject for a blog about climate change.  Well that would be wrong too.  Concerning a link between hantavirus outbreaks and climate change, researcher B. Klempa came to this conclusion:  The early effects of global warming have already been observed in different geographical areas of Europe. Elevated average temperatures in West-Central Europe have been associated with more frequent Puumala hantavirus outbreaks, through high seed production (mast year) and high bank vole densities. On the other hand, warm winters in Scandinavia have led to a decline in vole populations as a result of the missing protective snow cover. B. Klempa, Hantaviruses and climate change, Clin. Microbiol. Infect. 15(6):518-23 (June 2009).  Jan Clement and his colleagues looked at the rising incidence of nephropathia epidemica (NE), an emerging hantavirus-caused illness, which “has become the most important cause of infectious acute renal failure in Belgium, with sharp increases in incidence occurring for more than a decade.”  Clement’s team reported: NE, a zoonosis scarcely known before 1990, has been increasing in incidence in Belgium with a cyclic pattern, to reach statistically higher and even epidemic proportions since 2005. NE is a rodent-borne infection, implying that it is at least partly climate-dependent. … A higher availability of staple food for the rodent reservoir Myodes glareolus, together with a higher autumn-winter survival of this rodent, explains the higher and cyclic NE occurrence in Belgium and in neighbouring countries, Germany in particular. … The fact that the growing combined effect of hotter summer and autumn seasons is matched by a growing epidemic trend of NE in recent years, can be considered as an effect of global warming. J. Clement et al., Relating increasing hantavirus incidences to the changing climate: the mast connection, International Journal of Health Geographics 8:1 (2009).  At Yosemite, what has been happening to the population of deer mice ?  It has been increasing.  Traps set for mice following the hantavirus outbreak caught mice at a rate at least twice what had been recorded previously.  And it is hardly news that California’s winters have been milder and summers hotter.  Climate change is alleged to be the culprit.  See, e.g., California ex rel Lockyer v. General Motors Corp., No. 06-CV-05755, Complaint ¶¶ 47, 55 (N.D. Cal. filed Sept. 20, 2006) (one of the first climate change liability cases) (attached below).  The jury is still out on whether California's recent weather would cause an increase in the population of deer mice or not.  But as we have written previously, proving the causative role of climate change is not our point, others can do that.  We focus on what one can do in the face of climate change. Whether the hantavirus outbreak is climate-change driven or not, increases in the range and incidence of infectious disease is a predicted outcome.  Businesses need to prepare.  The first thing of course is to recognize that the fundamental feature of climate change is just that:  change.  And change means that there is no reason to believe that what was satisfactory in the past will continue to be satisfactory.  For example, one of the news stories on the hantavirus outbreak demonstrates this repeatedly.  The article reports criticism of park employees for failing to warn visitors after the first few cases were noted.  Guests continued to be checked into the suspect tents for over a week after the park service began deep cleaning the tents.  The tent design, with a space between the inner and outer fabric, permits mice to enter that space.  The National Park Service, and likely its concessionaire, will undoubtedly be revisiting their procedures and their equipment.  One can also envision claims for failure to warn, negligence and product liability by injured visitors or their estates.  And certainly, even without any claims, business is down at Yosemite.  The concessionaire would do well to investigate its liability, property and business interruption insurance policies, although it is certainly too late now to do anything about the terms of coverage.  That is not so for others, however.  One typical exclusion, for example, that will make coverage difficult for hantavirus claims (or any disease claims such as SARS, or swine flu, or dengue fever) is the Mold, Fungus and Organic Pathogen Exclusion.  As its name suggests, insurers certainly will assert that injury arising from exposure to the hantavirus is excluded.  But that argument could be eliminated if the insured had simply negotiated for a Fungus or Bacteria Exclusion, such as ISO’s CG 21 67 12 04. In any event, reading from a new perspective whatever exclusion is proffered can only help a company to manage its risks better. Some will say that the chances of a hantavirus outbreak affecting one’s business are vanishingly small.  We don’t dispute that.  What is not vanishingly small is the fact of climate change and that its effects are not vanishing. 2006 California ex rel. Lockyer v. General Motors Complaint.pdf (36.16 kb)

Climate Change | Climate Change Effects | Insurance

Climate Change Challenges the Republican Convention

August 26, 2012 21:44
by J. Wylie Donald
When the Republican National Committee made the decision to call off Day 1 of the Republican Convention as Hurricane Isaac threatened the Gulf littoral, some thought it was an appropriate comeuppance for Republican obstruction of climate change legislation. We won't pass such judgments.  Our focus here is all about addressing climate change; we leave it to others to assess the blame. What we have noticed, however, is a rising swell of concern in the electorate about climate change, which might start to cause  the Republicans some concern.  To be sure, this is only anecdotal, and filtered through climatelawyers.com's prism.  Still, sometimes it is meet to consider other viewpoints. We start with a Superfund site community meeting we attended a few months ago.  The site is near the ocean and one citizen asked whether the proposed remedy considered rising sea levels. EPA's answer was non-commital.  We next stopped in at a public meeting hosted by the Maryland Public Service Commission to consider electric service reliability. The citizenry turned out en masse to excoriate Baltimore Gas and Electric. Overflowing the hearing room, they questioned BGE's ability to handle the increasingly more severe weather (record blizzards in 2010, Hurricanes Irene and Lee in 2011 and the June 29, 2012 derecho - a new storm word in most vocabularies).  We took away a new thought:  extreme weather can trash not only your facilities; it can also trash your reputation if you are not prepared to deal with it.  And this is so whether one believes climate change is the cause of the problem or not. And what do we know about extreme weather? National Geographic delivered a frightening cover story on the subject in the September 2012 issue. We can't do justice to the article here but note a few unequivocally disturbing facts:  "As the oceans warm, they're giving off more vapor.  ... During the past 25 years satellites have measured a 4 percent average rise in water vapor in the air column.  The more water vapor, the greater the potential for intense rainfalls." This followed a description of the "once-in-a-millenium" flood in Nashville in 2010, which received over 13 inches of rain, more than twice the previous record. And Nashville wasn't alone; the article mentions record floods in Rio de Janiero. Pakistan and Thailand. "Extreme events ... are happening more frequently than they used to." From floods to droughts to heat waves, "Losses from such events helped push the cost of weather disasters in 2011 to an estimated $150 billion worldwide, a roughly 25 percent jump from the previous year."  These losses are characterized in the article by the Reinsurance Association of America as "extraordinary."  More ominously:  "The past is not prologue to the type of weather we're about to see." The article concludes that climate change is part of the cause of this demonstrably increasing extreme weather. National Geographic's circulation is about 5 million monthly in the United States. Query weather that means 5 million voters that believe something ought to be done about it? Extreme weather is not the only climate change effect that is impacting individuals. The News Journal, "serving Delaware daily since 1871," ran a 3-part front-page series last Sunday, Monday and Tuesday on the effects of climate change on Delaware and Maryland. One can look at the predictions of Delaware's losses in the next century:  • All of Delaware’s 73,400 acres of tidal wetlands, and 98 percent of its tidal marsh • Up to 15,000 Sussex County homes or businesses; 18,000 statewide, including 5 percent of identifiable commercial properties. • 44 percent of the state’s parks, refuges, conservation areas and otherwise protected land. • 5 percent of roads and bridges, including 6 percent of evacuation routes. • 6 percent of railroad lines, including areas around Wilmington’s Amtrak station. Or one can look at the effects that are being felt now:  A farmer near Milford is watching salt-water brine kill his crops a mile inland from Delaware Bay. Homeowners in Kitts Hummock have been told by the State that the beachfront community should "go back to nature" "it's not cost-effective to save." The Blackwater National Wildlife Refuge in Maryland is losing an acre a day to erosion and inundation. The salt marsh habitat is, or is becoming, open water. James Island has lost 160 acres to Chesapeake Bay. Smith Island, one of two inhabited islands in the bay, is likely to be entirely submerged should sea level rise another foot. The series notes: "those who don't see or feel the weight of the evidence are finding the facts harder to ignore."  The News Journal, the paper of record in Delaware, thinks climate change is worthy of the front page three days running. The smart money is on those - Republican or Democrat - who have a plan to address it; those whose plan is to deny it are going to get wet, or worse. 

Climate Change | Climate Change Effects | Regulation | Rising Sea Levels | Weather

The NFIP is Renewed and Reformed, and Climate Change Is Very Much in the Picture

July 8, 2012 14:18
by J. Wylie Donald
President Obama signed the Moving Ahead for Progress in the 21st Century Act, aka "MAP-21", this past Friday.  Support was broad:  the House voted 373-52; in the Senate it was 74-19 in favor.  The bill is a potpourri.  The bulk of the enactment addresses surface transportation topics, but it also includes measures to keep down student loan interest rates, overflights of the Grand Canyon, sport fish restoration, and extensive reform of the National Flood Insurance Program (including significant climate change provisions).  Interestingly, the White House eschews both statutorily-provided titles and chooses a simpler nomenclature, the Transportation and Student Loan Bill.  According to the White House, the Bill "accomplishes two important goals -- keeping thousands of construction workers on the job rebuilding America's infrastructure and preventing interest rates on federal student loans from doubling." These features are important, but we think the bill's significance will come from the unheralded feature:  reform of the National Flood Insurance Program (NFIP).  Reform is sorely needed.  As stated on the FEMA "Rethinking the NFIP" website, "The NFIP was designed as a means of discouraging unwise occupancy of flood prone areas, yet occupancy of these areas has expanded since 1968. Additionally, as risks continue to increase, the cost of flood insurance mirrors that increase, making it unaffordable for many Americans."  Criticism of the NFIP was nearly universal following Hurricane Katrina.  The program was underfunded - premiums came nowhere near the amount needed to cover claims (the NFIP is over $15 billion in debt).  Floods were repeatedly damaging the same properties, which had been rebuilt sometimes three or four times in the same location.  Fewer than half the properties at risk were covered; in some areas uninsured properties were the substantial majority.    The Washington Post in a 2005 editorial called for compulsory insurance and the end of subsidized rates.  A Wall Street Journal article reached similar conclusions.  Notwithstanding, reform could not be obtained.  The NFIP limped along living (and, on occasion, even dying) on borrowed time.   Since 2008, it has been extended no fewer than 15 times.  Four times the program lapsed as lawmakers could not come to terms.    Somehow, however, with the most recent extension due to expire on July 31, reformers prevailed and the act was revised and extended for another five years to September 30, 2017.  The reform act, known as the Biggert-Waters Flood Insurance Reform Act of 2012 (sec. 100201)), can be found at Title II of Division F (Miscellaneous) of MAP-21.   The reforms are extensive (and they will leave many wondering how any of these reforms were opposed in the first place).  Among other things, the bill provides: Subsidies for many properties are being phased out.  For example, a "severe repetitive loss property" (i.e., where payments for flood-related damage exceed fair market value of the property) is no longer eligible for a subsidized rate (sec. 100205(a)(1)). In setting rates the principles and standards of the American Academy of Actuaries and the Casualty Actuarial Society are to be followed, including "an estimate of the expected value of future costs" (sec. 100205(b)(3)).  The "average historical loss year" is to include "catastrophic loss years" (suggesting that previous averages did not include catastrophic losses, which is a calculus many would like to use with their insurers) (sec. 100211). Insurance premiums can now rise up to 20% per year (sec. 100205(c)).  10% was the earlier cap on premium increases. Multifamily properties (greater than 4 residences) can now  purchase NFIP policies (sec. 100204). There are now minimum deductibles for flood claims (sec. 100210).. A Technical Mapping Advisory Council is established to address flood map revision and maintenance  (sec. 100215(a)). A variety of studies are required:  among others, a study of the addition of business interruption and additional living expenses coverages; a report on graduated risk behind levees; a report on privatizing the NFIP; a report on "nationally recognized building codes as part of the floodplain management criteria", and a study on participation in, and affordability of, the NFIP (secs. 100231, 100232, 100233, 100235, 100236). In light of the politicization of the climate change topic, perhaps the most astounding of all the changes in the NFIP is the acknowledgement in the bill that climate change is a critical consideration in establishing a program that works.  (We and others have called for this for some time, see Underwater?  What Climate Change Means for a Loan Portfolio Near the Flood Plain).  The Technical Mapping Advisory Council must report to the FEMA Administrator within one year of enactment on the following: 100215(d) Future Conditions Risk Assessment and Modeling Report- (1) IN GENERAL- The Council shall consult with scientists and technical experts, other Federal agencies, States, and local communities to-- (A) develop recommendations on how to-- (i) ensure that flood insurance rate maps incorporate the best available climate science to assess flood risks; and (ii) ensure that the Federal Emergency Management Agency uses the best available methodology to consider the impact of-- (I) the rise in the sea level; and (II) future development on flood risk; ... And this report cannot just sit on the shelf.  The Administrator is obligated to, "as part of the ongoing program to review and update National Flood Insurance Program rate maps ..., shall incorporate any future risk assessment submitted [in the required report] in any such revision or update." (sec. 100215(d)(2)). We note that the statute speaks definitively about sea level rise.  It is not something indefinite; rather, the report must consider the impact of the rise in the sea level.  We also note that "best available climate science" is standard phrasing at NOAA, and the National Park Service, as well as among NGOs.  How it will fare in the ultimate report is, of course, unknown.  But we do not expect the effects of climate change will be shouted down, turned away or buried.  At the end of the day, the conclusions in the report will influence how money is to be spent and who will profit.  The best way to figure that out is to use the best information.  Certainly some will have an interest in obscuring the best available science, but the bipartisan support of the bill suggests that many more may have an interest in just getting the best answer.

Climate Change | Climate Change Effects | Flood Insurance | Legislation | Regulation | Rising Sea Levels

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