Climate Change Effects

Predicting Sea Level Rise - The Arctic Council Raises the Ante

May 16, 2011 20:27
by J. Wylie Donald
Last Thursday Secretary of State Hilary Clinton and other prominent diplomats signed the first ever treaty under the auspices of the Arctic Council; specifically, the member nations addressed Arctic search and rescue, made necessary by the increasing traffic in the formerly ice-locked realm caused by the reality of Arctic warming. Less noticed, perhaps, was the release of a report by the Council's Arctic Monitoring and Assessment Program (AMAP).  Among other things, the report, Snow, Water, Ice and Permafrost in the Arctic, forecasts up to a 5-foot rise in sea level by the turn of the century. This is real news because the earlier report in 2007 by the Intergovernmental Panel on Climate Change forecast an increase only one-third as large. We hesitated to report the AMAP conclusions because the last thing a law firm wants to be called is an alarmist, always sounding the air raid siren when a blip appears on the radar.   But, by the same token, counsel's fundamental role is to assist clients in addressing risks. That there are extreme views on almost any subject does not mean that the subject should be ignored. And the views here are not extreme.  Climate change is occurring. Prudence dictates that the effects be considered and addressed. The AMAP report is a product of the environmental assessment arm of the Arctic Council, an 8-nation group that considers how to promote sustainable development and environmental protection in the Arctic. The report picks up where the IPCC left off, when it forecast a sea level rise of between 7 and 23 inches by 2100. Left out of the IPCC analysis was the effect of the melting Antarctic and Greenland ice sheets because the science was undeveloped. Four years later, the Arctic Council has filled in that void and reached a startling result. According to the report's executive summary, the warming of the Arctic is having a dramatic effect. "A nearly ice-free summer is now considered likely for the Arctic Ocean by mid-century."  A "Key Finding" was that "global sea level is projected to rise by 0.9–1.6 m by 2100."  Translating, that is a sea level rise of between 3 and 5 feet by the end of the century. Shipping companies are salivating at the prospect of a straight shot over the roof of the world from Europe to Asia. Investors in the Panama Canal are less enthusiastic. What does all this mean for those considering their waterfront risks far south of the Arctic Circle?  Quite a bit actually.  The EPA offers some sobering data on its website. A two foot rise in sea level would eliminate almost 10,000 square miles of land (that is, an area exceeding all of Massachusetts). Damage from storms in a world with a 3-foot higher sea level would be 2 or 3 times as large. The salinization of coastal aquifers from salt water intrusion from rising sea levels threatens water supplies in Florida and south Jersey. It may seem like there is little that can be done if one is unwilling to abandon the shore.  But that would be a very shortsighted view.  Investors, lenders, developers and businesses involved with real estate near the shoreline should be considering the following 1. What interest in land should one acquire - a fee simple or a conventional 30-year lease?  The lessee, without a single additional word in its lease, may be protected from rising sea levels by the covenant of quiet enjoyment. The fee owner, on the other hand, bears all of the risk of a rising mean high water mark. 2. How effective are one's contracts' force majeure clauses?  Will performance be excused if one's facility is submerged?  What about if the local infrastructure goes underwater?  Does a condemnation action by governmental authorities trigger the provision? 3. Where exactly is mean high water?  Where will it be if the predicted rise occurs even in part?  What is the significance of that for the investment expectations of all involved? 4. What is the effect of a state statute that establishes the seaward property line at something other than the sea?  If this sounds nonsensical, it is the law in Florida, as confirmed by the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v Florida DEP.  Florida's statutory "erosion control line" converted many beachfront properties, into beachview properties. And no, there was no compensable "taking." There are certainly others. The point is not to run about shouting "The sky is falling!". The point is to consider thoughtfully the possibility that the sky may fall and whether there is anything that can be done about it.

Climate Change | Climate Change Effects | Rising Sea Levels | Sustainability

Oral Argument in Steadfast v AES Seemed to Favor AES

April 20, 2011 07:25
by J. Wylie Donald
Supreme Court argument is delicious - for lawyers anyway. Following months of preparation, thousands of pages of research, and draft after draft, finally the parties are called to the fore and bluntly told: "Make your best arguments, counsel." In that context, I ventured to Richmond, Virginia this morning to hear the able presentations on behalf of The AES Corporation (appellant - insured) and Steadfast Insurance Company (appellee - insurer). The parties were locked in a contest over who should pay for the defense of Native Village of Kivalina v. ExxonMobil Corp., the climate change liability suit emanating from the northern shores of Alaska, where native Inupiat residents assert that various utilities, oil companies and a coal company are liable for the emission of carbon dioxide, which resulted in global warming, which melted winter sea ice, which loss permitted fierce winter storms to erode the peninsula on which the residents made their home. The case is the first climate change coverage case with all the implications primacy may have. In the proceedings below, the trial court had initially denied the insurer's motion for summary judgment based on (as argued by the insured) the existence of factual issues. The court specifically held that it could not decide whether the pollution exclusion could be applied. The insured then turned around and filed its own summary judgment motion on the duty to defend. The insurer cross-moved and argued that there was no "occurrence" as the allegations in Kivalina were all intentional acts leading to reasonably foreseeable injury. It also argued that the policies' pollution exclusions applied. The court issued a terse order: "no 'occurrence' as defined in the policies has been alleged in the underlying Complaint." With this prelude, the parties crossed lances before seven justices of the Virginia Supreme Court. In our view, the insured carried the day (and, as explained below, this is not just because AES cited our law review article in their reply brief). Counsel kept it simple. First he opened with a nod to the pollution exclusion and emphasized what was clearly set out in the briefs: the pollution exclusion issue was decided in the insured's favor (the court ruled a fact issue existed) and the insurer did not assign cross-error in its response to the insured's appeal. Accordingly, there was no issue before the Court. Next he turned to the issue that was appealed: whether an allegation of negligence, even if mixed in with numerous allegations of intentionality, constituted an "occurrence." More specifically, did the allegations of Kivalina contain an "accident"? Accident was undefined in the policies, but well-defined under Virginia law. Even if the act was intentional (such as the emission of CO2 by a utility), if the harm was unplanned, the carrier was required to defend. An allegation that the alleged tortfeasor "should have known" (as was asserted in the Kivalina complaint) was sufficient to establish the duty to defend. In keeping with his theme, counsel provided a simple example: if he intentionally changed lanes, but failed to look in his rear-view mirror and clobbered someone, surely that was covered. And it would be covered even if it was reasonably foreseeable that someone would be injured if he failed to look. It was a good example (as we will discuss). Counsel for Steadfast likewise appeared to be starting her discussion with the pollution exclusion. Labeling it a "toxin" (a poisonous substance that is a specific product of metabolic activities ???), she then proceeded to make the point that the insured was sued for its routine business decisions, which insurance does not cover. Further, if the four corners of the policy are compared with the four corners of the complaint (the so-called 8-corners rule which is adopted in Virginia) then it is beyond cavil that the Kivalina plaintiffs alleged that AES knew it was emitting carbon dioxide and knew that that would cause harm. At which point Justice Mims interrupted and attempted to pin down the parties' positions. As he heard it, the insurer argued that there was no coverage for intentional acts with known consequences, and AES argued coverage was lost only for intentional acts with intentional consequences. Insurer counsel refined that slightly: coverage was lost for intentional acts with reasonably anticipated consequences. And then that automobile example resurfaced - embraced by the chief justice. Frankly, I did not follow insurer counsel's rejoinder but I will attempt to recreate it. First, the policy's terms address "accidents" not negligence. Negligence is not necessarily the same as an accident. For example, while speeding and hitting someone would be both an accident and negligent, drag racing and hitting someone might be negligent but it would not be an accident. Furthermore, mere words in a complaint (like the "negligence" used in the Kivalina complaint) were not sufficient. The court must look, counsel argued, to the "facts and circumstances," which showed that there was no error, no mistake, no mishap. It was volitional and deliberate conduct. Counsel then turned to the pollution exclusion and pointed out that the Kivalina complaint talked about pollution everywhere. "But," pointed out Chief Justice Kinser, "isn't the only ruling below that there was a fact issue precluding summary judgment?" Justice Mims chimed in and emphasized the failure to assign cross-error. Although insurer counsel asserted that it was argued on the second motion, Chief Justice Kinser spoke again and affirmed that there needed to be cross-error assigned. Rebuttal was quick. Counsel stated: "We won the pollution exclusion issue and the trial court never ruled differently." And he effectively brought up again his lane-changing example. "If the Court adopts the insurer's position there will be no coverage in lots of areas because foreseeable harm is common. The issue is whether the harm was intended." Prognostication is the devil's own but one can't help oneself. The pollution exclusion issue seems that it will be decided entirely on procedural grounds: as it was not raised below, it was not preserved for appellate review. The occurrence issue is a little more difficult but, as was effectively pointed out in the moving brief and in argument, the Kivalina plaintiffs chose their words and they chose negligence. How could the Court possibly ignore that?

Carbon Dioxide | Climate Change | Climate Change Effects | Climate Change Litigation


Twentieth Century Reanalysis Project Provides Tool to Assess Extreme Weather - Part II

February 16, 2011 10:52
by J. Wylie Donald
We wrote yesterday concerning the Twentieth Century Reanalysis Project and of the controversy engendered by, and the threat to credibility surrounding, misquotes in the climate change sphere. We should have added "and misquotes also take away from the main story line."  The point of the posting was the potential lack of correlation between extreme weather and climate change.  We obscured that by focusing on the misquote. So let's return to extremes. A view proffered by Dr. Roger Pielke Jr. is that "there's no data-driven answer yet to the question of how human activity has affected extreme weather disasters."   Dr. Pielke has offered research showing that a disaster's increase in loss is more due to the increase in population and infrastructure in areas than due to climate change.  See, e.g., Ryan P. Crompton et al., Influence of Location, Population, and Climate on Building Damage and Fatalities due to Australian Bushfire: 1925–2009, 2 Weather, Climate, and Society 300 (2010). Others differ. In a story in the New York Times this past weekend, Elizabeth Rosenthal offers up how insurers and civil engineers are viewing the weather. Peter Hoeppe, a meteorologist and head of Munich Re’s Corporate Climate Center, has this to say: “Your own perception that there are more storms and more flooding causing damage — that is extremely well documented.”  “There is definitely a plausible link to climate change.”  And D. Wayne Klotz, president of the American Society of Civil Engineers, comments: “As we get more extreme events, that absolutely changes how we design.”  Mr. Klotz pointed to the specifics of his trade, where drainage systems today are designed to carry more water than 20 years ago.  Mr. Klotz concluded:  “We could stick our heads in the ground and say nothing is changing. But it is.” In other words, people with a lot of skin in the game are applying their resources and skills and concluding that they or their clients are at increased risk from extreme weather. This suggests that the Reanalysis Project's data need to be further analyzed, which is consistent with Dr. Pielke's statement and with that of the Reanalysis Project authors, who noted aspirationally in their summary that "the 138-year span of the ... dataset should make it even more useful for ... assessments of ... extreme event variations."   All of which is consistent with's fundamental position:  climate change is occurring and businesses need to act to understand the risks and opportunities that such change is bringing.  If the 100-year flood plain is expanding due to changes in weather patterns, lenders and insurers need to know that. If a half-meter sea level rise by 2050 means a hurricane storm surge will overwhelm the sea wall, emergency response planners and local businesses need to know that. And if hotter weather means more air conditioning needs, then utility regulators need to know that. The extreme view would be that these risks can be ignored, and that there are no opportunities to prosper as climate change unfolds.

Climate Change Effects | Weather

Twentieth Century Reanalysis Project Provides Tool to Assess Extreme Weather - Part I

February 15, 2011 21:07
by J. Wylie Donald
What if we had it all wrong?  What if the weather really wasn't getting more extreme, wasn't getting hotter (or colder, wetter, drier), wasn't changing?  Then  any efforts to rein in carbon dioxide emissions would be misguided and, worse, costly.  Is there any evidence that scientists are getting it all wrong?  The Twentieth Century Reanalysis Project is working on figuring that out.  An international team of climatologists enlisted millions of hours of supercomputing time and plugged in over a century of weather data.  The goal is to permit climate researchers to better address issues such as the range of natural variability of extreme events such as floods, droughts and hurricanes. To quote the study's lead author, Gil Compo of the National Oceanic and Atmospheric Administration, "This reanalysis data will enable climate scientists to rigorously evaluate past climate variations compared to climate model simulations, which is critical for building confidence in model projections of regional changes and high-impact, extreme events." For those of you who remember the moment in the sun (of the popular press) of chaos theory, there was something called the Lorenz Butterfly Effect, that affirmed that the flapping of a butterfly's wings in Brazil could, through various weather processes, lead to tornadoes in Texas.  It may frustrate lawyers to learn that proximate cause does not hold in weather analyses.  Very small changes in initial conditions can result in very large differences in weather outcomes.  Hence the importance of the Reanalysis Project in assessing actual weather conditions and changes over time. Small differences in words may also make a difference.  Query whether there is a difference between "extreme weather" and "extreme weather disasters".  Anne Jolis of the Wall Street Journal European Edition set off a small controversy this weekend when she or her editors dropped a word from a quote from one of her climate research sources when she provided the Journal's spin on "climate alarmists."  Ms. Jolis offers an antidote to climate change-induced extremes in weather:  "There is at least one climate lesson that we can draw from the recent weather: Whatever happens, prosperity and preparedness help."  That is, countries that are economically advanced are more likely to fare better in the face of Mother Nature's onslaughts.  She compares Australia's response to Cyclone Yasi (only one death) to that of Myanmar when Cyclone Nargil ultimately caused the deaths of 130,000 people.  Therefore, concludes Ms. Jolis, economic activity should be enhanced, not diminished as alarmists would do. The butterfly effect here is the quote relied on by Ms. Jolis:  ""There's no data-driven answer yet to the question of how human activity has affected extreme weather," adds Roger Pielke Jr., another University of Colorado climate researcher."  What Dr. Pielke actually said, as set forth on his blog, "There's no data-driven answer yet to the question of how human activity has affected extreme weather disasters."  So was the omission of "disaster" meaningful?  Dr. Pielke's peers apparently thought so and queried him, thus prompting the blog response.  We don't intend to resolve that question.  We do wish to point out, however, that such editing can call into question the validity of an entire article.  Ms. Jolis makes a fair point about economic growth being an important tool to address the problems of climate change.  But we think she loses some credibility when her sources assert they were misquoted.  As Dr. Pielke points out, ín the climate change debate "anything that can be misinterpreted usually will be."

Carbon Dioxide | Climate Change Effects | Weather


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