Rising Sea Levels

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

Studies Map Climate Change Driven Storm Surge Down to Your Zip Code

March 16, 2012 20:09
by J. Wylie Donald
We were on the front page of the New York Times earlier this week. We wish!  Our marketing department has not cracked that nut yet. Not so the folks at Climate Central. Their press release about their report, Surging Seas, got them a front page spot in New York. It also was picked up by papers of record in Miami, Boston, Los Angeles, and Chicago, among others. Internet outlets like the Huffington Post and msnbc.com carried it. Even the UK's Daily Mail has picked it up. What was so momentous?  The researchers in our view did three things. The first is typical. They identified the risk caused by an effect of climate change. It is a serious risk, potentially affecting millions.  The second was astute.  The two published studies on storm surge and rising sea levels (Modelling sea level rise impacts on storm surges along US coasts, and Tidally adjusted estimates of topographic vulnerability to sea level rise and flooding for the contiguous United States) are dense.  Surging Seas converts them to understandable lay terms.  The third was their genius. They brought the issue down to zip code specifics. Let us explain.  The first step was accurately to determine the elevation of all the coastal property in the United States.  This was done using the National Elevation Dataset established by the US Geological Survey. The next step was to compare the elevations to local high tide levels as ascertained using NOAA information and techniques.  Overlaid on that was 2010 census data. Thus the Climate Central researchers had the best data on population and proximity to the sea. What's more, they could show that information visually and with granularity. What remained was to add storm surge data. This is the 900 pound gorilla. Rising sea levels will add only inches to the level of mean high tide in the next 20 years. The effect of storm surge is not so minor. To quote Surging Seas:  In many places, only inches separate the once-a-decade flood from the once-a-century one; and separate the water level communities have prepared for, from the one no one has seen. Critically, a small change can make a big difference, like the last inch of water that overflows a tub. This effect is dramatic. According to the authors of the report, for 2/3 of the locations analyzed the risk of a once-in-a-century flood has doubled, for 1/2 the risk has tripled. What this means is that for many storm surge flooding is no longer something one could expect to see once in a lifetime, or not at all. To get specific, the study "found that at over half the sites examined, there is a one-in-two or better chance of water reaching 4 feet higher than the average local high tide by 2030, at least once." Such flooding puts almost 5 million people at risk. To complete this part of the analysis the researchers looked at local water level gauges, land subsidence rates and global sea level rise to calculate local sea level rise. They then analyzed historical local extreme water level patterns (i.e., storm surges) assumed they would continue to exist, and applied them.  The conclusion is ominous:  "Sea level rise is raising the launch pad for storms and high tides, and being experienced by the ever-more frequent occurrence of extreme high water levels during these events -- long before the ocean reaches damaging heights permanently." Which brings us to the meat of the matter. Our in-laws are in South Florida. We can type in their zip code, and query the Climate Central web page as to the likelihood a 4-foot storm surge will invade their home before 2030. And we can blow up the map and look right at their street. We are buying them a canoe.  

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

Connecticut Introduces Bill to Incorporate Climate Change Strategic Retreat into Coastal Zone Management Act

March 4, 2012 20:48
by J. Wylie Donald
Apocryphally, the emperor of the Eternal City took out his violin while the city was consumed in a conflagration. In lay terms, Nero fiddled while Rome burned.  Some would like to draw the analogy to climate change policy in the United States, held up based on principles, or partisanship, or grandstanding or blind denial.  Whatever the reason, the climate for making climate change policy has grown decidedly colder since the heady days of 2008 when even the Republican party was on board.    Nevertheless, some are not waiting until prediction becomes reality.  For example, lawmakers in Connecticut, which opened the 2012 legislative session on February 8, have the opportunity to address one of the issues caused by a changing climate:  rising sea levels. Two bills introduced in the General Assembly focus on the changing shore. The first, Raised Bill No. 5127, is at first glance an inconsequential revision to the definition of the high tide line. Currently, Connecticut defines mean high tide as "a line or mark left upon tide flats, beaches, or along shore objects that indicates the intersection of the land with the water's surface at the maximum height reached by a rising tide."  Conn. Gen. Stat. Section 22a-359(c).  It can be determined by, among other things, a line of oil, a line of scum, "a more or less continuous deposit of fine shell", vegetation lines or tidal gauge.  Id.  Some (including the authors of 5127) might conclude that for regulatory and enforcement purposes that is a little vague. So the proposed bill seeks something a little more rigorous. But if you thought it would be something simple like the Greenwhich Meridian or an atomic clock, you would be mistaken.  Under the proposed bill, Connecticut would look to the location of the topographical elevation of the highest predicted tide for the period  beginning in 1983 and ending in 2001, referenced to the most recent National Tidal Datum Epoch as published by the National Oceanographic and Atmospheric Administration (NOAA) and described in terms of feet of elevation above the North American Vertical Datum of 1988. Raised Bill No. 5127(c).  This elevation is specified for each municipality along the Connecticut littoral.  Id. While this change advances the science of seashore delineation and has been adopted by others, e.g., Fla. Stat. 177.27, other states are still content to rely on a subjective view of the beach.  E.g.,  Rev. Code Wash.  90.58.030(2)(c).  So what is driving the change in Connecticut? If one turns to the next Raised Bill before the General Assembly one will have the answer.  Raised Bill No. 5128 proposes revisions to the Coastal Zone Management Act.  Section 2 adds a new definition, "Rise in sea level," that is keyed to the North American Vertical Data.  The definition goes on to report that the rise in Connecticut coastal sea level is projected to occur "at an average rate of not less than 2.4 inches per decade, ..."  Id. "Rise in sea level" is important because 5128 makes clear why precise delineation is going to matter.  New subsection (b)(1)(K) to Conn. Gen. Stat. 22a-92 seeks "to encourage a fair and orderly legal process to foster strategic retreat of property ownership, over a period of several decades, for coastal lands that have a likelihood of being lost due to erosion and coastal lands that contain structures that are subject to repetitive damage."  Napoleon from Moscow.  Lee from Gettysburg.  The 21st Century's strategic retreat may last far longer and cost far more than anything in the history books.  The Delaware Department of Natural Resources and Environmental Control described "strategic retreat" as the "remov[al] of oceanfront buildings as the shoreline erodes to maintain a beach width or certain distance between buildings and the water. An effective strategic retreat plan would involve systematic removal of structures as the beach migrates inland and the buildings become threatened by waves and surf."  Jim Titus at EPA described it as "minimizing hazards and environmental impacts by removing development from the most vulnerable areas."  However one describes it, DNREC's further comment is worth noting:  "there are no easy solutions or clear implementation strategies to accompany the issue of strategic retreat while accomplishing the  management goal of preserving and maintaining recreational and protective beaches. Strategic retreat requires hard decisionmaking, funding, and firm commitment by the Administration and the Legislature if it is to succeed."  Accordingly, the Connecticut Legislature should take note:  this is not going to be a walk in the park.  Nevertheless, assuming the political hurdles can be overcome, strategic retreat will undoubtedly become part of the climate change response.  Kudos to Connecticut for not fiddling around. 

Climate Change | Climate Change Litigation | Legislation | Rising Sea Levels

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

McCARTER & ENGLISH CLIMATE CHANGE AND RENEWABLE ENERGY PRACTICE GROUP

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.

Click here for more information and a list of our group members.

MONTH LIST

© 2017 McCarter & English, LLP. All Rights Reserved. disclaimer
navbottom image