Florida Bar Journal

New Evolutions in the Law of Climate Change and Sea-Level Rise

Climate change and sea-level rise law continue to evolve. Federal and state regulatory and policy responses involve expanding and evolving approaches to the legal issues stemming from the new future of environmental conditions. This article explores four aspects of the law of climate change and sea-level rise: First, changes in the federal regulatory context that address greenhouse gas management and climate change. Second, other caselaw such as takings, nuisance, and flood disclosures. Third, the concept of the public trust doctrine to compel action on climate change. Finally, approaches at the state and local levels are summarized. These issues form the new reality of climate change and sea-level rise law.

Regulatory Updates Related to Climate Change

Generally, the National Environmental Policy Act (NEPA) of 1969^[1] requires federal agencies to take a “hard look” at the environmental impacts of their actions and disclose public information, such as the environmental impacts of a proposed action (including cumulative impacts); adverse effects that cannot be avoided; alternatives to a proposed action and commitments of resources for major federal actions significantly affecting the quality of the human environment.^[2] Actions include federal programs, projects, regulations, land and resource management plans, grants and loans, permits and approvals. Federal agencies have different internal NEPA procedures, such as those followed by the U.S. Army Corps of Engineers,^[3] the Federal Highway Administration, and the Federal Transit Administration.^[4] The Council on Environmental Quality (CEQ) administers NEPA.^[5]

CEQ worked from 2010-2016 to promulgate guidance on how federal agencies should consider the impacts of their actions on global climate change in NEPA reviews. The final 2016 guidance^[6] provided a framework for agencies to consider both the effects of a proposed action on climate change, by its estimated greenhouse gas emissions (GHGEs), and the effects of actual physical climate change (rising temperatures or sea levels). The justification was that federal actions have the potential to contribute to climate change by producing GHGEs, or alternatively, be affected by impacts of a changing climate, such as rising sea levels, extreme weather, drought, or wildfires. Another key factor was that the federal agencies and rapidly evolving caselaw were not aligned in how to treat these issues. The final 2016 guidance addressed four priority issues: quantifying projected GHGEs; directing agencies to determine the appropriate level of review; considering alternatives that would make the action and affected communities more resilient; and use of existing information and science when assessing proposed actions. In early 2017, CEQ was directed to withdraw the 2016 guidance.^[7]

On June 21, 2019, CEQ issued new draft guidance in the Federal Register for comment (extended to August 26, 2019),^[8] which focuses more narrowly on only evaluating GHGEs for proposed major federal actions resulting in more timely environmental reviews and permitting decisions for infrastructure projects. It directs agencies to quantify a proposed action’s direct and reasonably foreseeable indirect GHGEs when substantial enough to warrant it and when it is practicable (local, regional, national, or sector-wide emissions estimates are acceptable to use). Finally, it states that agencies should consider reasonable alternatives to the proposed action and discuss short- and long-term effects and benefits. The guidance does not require a sea-level rise or climate-impact analysis. Finally, the analysis need not weigh the effects of the various alternatives in a cost-benefit analysis. The guidance specifically states: “This guidance does not change or substitute for any statutes, regulations, or any other legally binding requirement and is not legally enforceable.”

Other regulatory changes at the federal level involving climate, GHGEs, and sea-level rise include:

1) The Environmental Protection Agency’s (EPA) proposed policy rescinding the methane requirements and removing regulation of transmission and storage facilities from EPA’s purview under the Clean Air Act.^[9]

2) The National Highway Traffic Safety Administration and EPA propose to amend the Corporate Average Fuel Economy (CAFE) and GHGEs standards for passenger cars and light trucks and establish new standards, covering model years 2021 through 2026.^[10]

3) Revocation^[11] of Executive Order 13690, signed January 30, 2015,^[12] requiring federally funded projects to factor rising sea levels into construction. However, in 2018, the Department of Housing and Urban Development required buildings constructed with disaster relief grants to factor in sea-level rise.^[13]

Takings, Nuisance, and Disclosures

Several concepts previously identified as “emerging” topics^[14] have now taken center stage in the evolution of climate change caselaw. There is notable growth of certain legal theories pertaining to the law of climate change. These are especially important when state and local governments plan for climate change, undertake resiliency projects, and most significantly, fund climate adaptation work.

• Agency Actions (Takings and Torts) — Property owners have brought suit against government agencies to compel or prevent action related to climate change. These suits have taken two major forms: takings and torts. An instructive line of litigation involves actions against the U.S. Army Corps of Engineers post-Hurricane Katrina for failure to maintain or operate portions of the federal levy system protecting areas in Louisiana from flood damage.

In 2009, Louisiana plaintiffs sued the U.S. Army Corps of Engineers under the Federal Tort Claims Act (FTCA).^[15] The plaintiffs initially obtained a damage award on a tort theory.^[16] But, the Fifth Circuit reversed that holding on the ground that the government was immune from liability under the discretionary-function exception of the FTCA.^[17]

In Borough of Harvey Cedars v. Karan, 214 N.J. 384 (2013), the court determined the “appropriate method” for calculating “just compensation” when a portion of private property was taken for a public project that would both lessen in part and enhance in part the value of the remaining property. Plaintiffs owned a three-story, single-family, beachfront home, the top floors of which had a panoramic beach and ocean view. The borough of Harvey Cedars used eminent domain to take a portion of the Karans’ beachfront property to construct a 22-foot high dune, which at least partially obscured the Karans’ previously unobstructed view.^[18] It was noted that without the project, the Karans had a 56% chance of storm damage over 30 years, but with the project, it had a 200-year “protective life.” Therefore, the project itself provided anticipated benefit to the Karans. The Karans sought to exclude testimony on the project benefits. The jury awarded $375,000 in just compensation, which was upheld at appellate level. The New Jersey Supreme Court remanded the case finding that a property’s fair market value^[19] should be used to calculate just compensation in a partial-takings case and the benefits of the dune project should be considered. Ultimately, the Karans received a $1 settlement at the conclusion of the case.

• New Directions in Nuisance — Litigation premised upon nuisance theory has also been on the rise, stemming from efforts to impose liability from climate change impacts upon those contributing to its effects. Claims at both the federal and state levels have met with varying results. Early caselaw was premised upon the federal common law of public nuisance for GHGEs and whether those claims had been displaced by legislation from Congress or regulation from EPA. Damages were sought from harm to property or relocation expenses from sea-level rise impacts. A new direction has been the use of public nuisance theory, which prohibits unreasonable interference with public rights in air and water, as a path to damages for adaptation expense.

San Mateo County, Marin County and the City of Imperial Beach, et al. v. Chevron, 294 F. Supp. 3d 934 (N.D. Cal 2018), in California Superior Court, relied upon public nuisance, strict liability for failure to warn, design defect, private nuisance, negligence, and trespass theories to hold the fossil fuel industry responsible for its contribution to climate change. Local government brought actions to address the financial burden to adapt to climate change caused by the activities of the fossil fuel industry.

In public nuisance damage claims,^[20] federal law has been favorable to the fossil fuel industry. In San Mateo, the parties focused on the motion to remand granted March 16, 2018,^[21] regarding the common law vs. statutory interpretation related to GHGE regulation and preemption, among other issues. The issues are now on appeal before the U.S. Court of Appeals for the Ninth Circuit. Other local governments have joined in these types of actions including, but not limited to, Baltimore,^[22] Boulder,^[23] and New York City.^[24]

In other nuisance news, various states have commenced action against the fossil fuel industry, further advancing the argument that such claims are properly before state courts. Rhode Island sued fossil fuel defendants in 2018 in Providence County Superior Court. In similar fashion, a notice of removal was filed in the U.S. District Court for the District of Rhode Island. On July 22, 2019, an opinion and order were issued remanding the case back to state court “because there is no federal jurisdiction under the various statutes and doctrines adverted to by [d]efendants….”^[25]

• Disclosure of Risk — In Ali v. J.P. Morgan Bank, No. 17-2858 (S.D. Tex. filed Sept. 23, 2017) (Chase), plaintiff Ali purchased a home from Chase in 2011 and alleged Chase negligently gave Ali wrong and unlawful advice and counsel on the need for flood insurance, including mortgage financing advice, home insurance advice, flood insurance advice, and other counseling from Chase. He further alleged reliance on Chase’s wrong and unlawful advice contributed to his foreseeable injury. The action was a common law claims of negligence and negligent misrepresentation, including a plea of strict liability in tort for Chase’s conduct. Chase advised Ali that the home at issue was not in a flood zone, and relying on that advice, Ali removed his coverage for flood insurance. During Hurricane Harvey, the home flooded with over $200,000 in damages. By advising Ali that the home was “not in a flood zone,” Ali alleged Chase was engaging in the unlawful practice of insurance by an unlicensed person, for which it is strictly liable in tort. The case was set for trial but ultimately settled with undisclosed terms through the filing of a stipulation of dismissal with prejudice by Chase.

Interestingly, in the 2019 Texas legislative session, S.B. 339 was passed and signed into law, expanding information on flooding related to property disclosures. The new disclosure requirements include whether the home is located in a 500-year floodplain, a flood pool, in or near a reservoir, and whether the home has flooded before.^[26] Previously, sellers were only required to disclose whether their home was in a 100-year floodplain, which has a 1% chance of flooding every year. Both the Ali case and S.B. 339 raise important points: Is the typical 100-year special flood hazard area the right barometer of risk for requiring flood insurance with a mortgage? Should planning, building, and floodplain regulations more squarely focus on the 500-year event, which is happening far more frequently each year? What is the right balance between property values and disclosure of flood risk? Most importantly, who should assume that burden?

• Public Trust Doctrine — In Juliana v. United States, No. 15-1517 (D. Or. filed Sept. 10, 2015), a lawsuit brought by 21 young people in the district of Oregon against the federal government, the public trust doctrine is utilized to compel action on climate response and mitigation. In the complaint, plaintiffs argue the federal government violated their constitutional rights by contributing to the accumulation of dangerous levels of GHGEs in the atmosphere. Under the Fifth Amendment of the U.S. Constitution and 28 U.S.C. §1331, plaintiffs seek to redress defendants’ systemic deprivation of their fundamental rights to life, liberty, and property, as well as the defendants’ denial of equal protection of the law. The government defendants have pursued numerous petitions for writ of mandamus and appeals of various aspects of the case, preventing it from being heard at trial. The most recent oral argument on an interlocutory appeal by the government defendants was held June 4, 2019.^[27]

The Florida Constitution also includes a public trust doctrine, which provides that the state holds navigable rivers, lakes, and tidelands in the public trust and, thus, there is a legal duty held by the state to preserve and control them for public use.

Activities at the State and Local Levels

At the state level, the key requirement to address climate change and/or sea-level rise continues to be local governments addressing the “peril of flood” in comprehensive plans.^[28] It should be noted that this requirement only applies to coastal communities that must have a coastal management element of their comprehensive plan. While this is a “floor,” only applying to coastal communities, many local governments are going above and beyond to address climate change in other policies and regulations.

A recent case in Virginia Beach, Argos Properties II, LLC v. City Council for Virginia Beach, No. 18-2289 (Va. Cir. Ct. filed May 17, 2018), upheld a local government’s authority to incorporate sea-level rise factors into local planning and regulatory initiatives. In an area that was subject to flooding, the city required a stormwater analysis accounting for a 1.5-foot increase in sea-level rise and other related flooding, which resulted in a denial of Argos’ request for a building authorization for a residential development. The developer challenged the denial and countered that the city acted outside of its authority and arbitrarily and capriciously with the new requirement. The court found the city had properly denied an application in April of this year. While not a Florida case, the notion that local governments have the authority to require such criteria in the development arena is instructive.

Some examples of local government regulatory efforts include:

• Seawall Regulations — Local governments are increasing the height of seawall requirements. Two examples include:

1) The City of Miami Beach requires new private and public seawalls meet a minimum elevation of 5.7 feet NAVD (from 3.2 feet previously). Existing seawalls not being repaired or replaced may remain so long as they meet the minimum 4.0 feet NAVD and a structural design to accommodate extension to 5.7 feet NAVD in the future.

2) Broward County is moving toward a minimum seawall height standard of four feet NAVD 88 by 2035 and five feet NAVD 88 by 2050.^[29]

• Land Development Regulations — Some local governments are starting to address resiliency concepts in their land development regulations. These may be separate and apart from stormwater design, but include a range of approaches to incorporate resiliency concepts into land development. Examples include:

1) Satellite Beach addresses coastal construction control line in setbacks and variances and sea-level rise impacts governing the construction, reconstruction, modification, repair, or replacement of principle or accessory structures located east of Highway A1A.^[30] The code also addresses non-conformities in the grandfathering of lots and sea-level rise.^[31]

2) A non-Florida example, Norfolk, Virginia, uses a “resiliency district” concept establishing three different types of overlays (coastal resilience, upland resilience, and neighborhood) as well as point-based resiliency quotient to evaluate the use of resilient technologies, including stormwater management, risk mitigation, and energy resiliency for development.^[32]

• Stormwater Regulations — Local governments are increasing onsite retention requirements or increasing “tailwater” design criteria. Two examples include:

1) Broward County requires use of new maps “Plate WM 2.1 – Future Conditions” (for the wet season water table in 2060-2069) in surface water management system designs for new development, major redevelopment, and major license modifications to phase in better flood protection and drainage for future development.^[33]

2) Pinellas County requires a minimum tailwater elevation of 3.0 feet for noncritical infrastructure and 4.0 feet for critical infrastructure. Applicants may utilize alternative tailwater elevations due to site-specific constraints, but should take into account current and future conditions at the receiving water.^[34]

Conclusion

In conclusion, as the state of Florida and local governments continue to advance their efforts to plan for climate change and sea-level rise, a myriad of policy approaches and issues will arise. No one approach will fit each area because of the unique characteristics and issues that brought the community to begin planning and adapting in the first place.

Local governments will continue to be on the forefront of these issues because they largely plan, fund, and maintain infrastructure, as well as control land use and development policies. Continued and new challenges on the horizon include tensions as the development community battles for higher ground in already established neighborhoods, managing climate and public-health issues, historic preservation versus resiliency of structures, endangered and listed species management in diminishing habitat, and antiquated regulatory systems that don’t contemplate future conditions.

Funding challenges are at the forefront of balancing infrastructure retrofits or land acquisition priorities and equities of where adaptation will occur. Bonds, special assessments, user fees, grants, partnerships, and general revenue will be sources to fund climate adaptation work.

In a sea of change, the one constant will remain: The law will continue to evolve and expand as both a tool and challenge to address climate change and sea-level rise.

This column is submitted on behalf of the Environmental and Land Use Law Section, Jonathan H. Maurer, chair, and Susan Martin, editor.