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Why the Law of Climate Change Matters: From Paris to a Local Government Near You

Environmental & Land Use Law

Climate change has received much national attention recently, but the laws, regulations, issues, and caselaw evolution, have a history that is not well known. International strategies are one important element in solving the climate change challenge. Impacts locally such as street flooding, compromised drainage, habitat and species changes, accountability, and liability confluence bring a new reality to the importance of understanding what is being done, or not done, at all levels of government. This article summarizes the climate change law highlights at the international, state, and local levels and provides insight as to why it matters.

The International Context
Efforts Before the Paris Agreement — On May 9, 1992, the United Nations Framework Convention on Climate Change (UNFCCC) was adopted, framing the climate challenge and initial strategies to solve it.1 Today, 197 total countries are signatories.2 The UNFCCC serves as a “framework for international cooperation to combat climate change by limiting average global temperature increases and the resulting climate change, and coping with impacts that were, by then, inevitable.”3 The United States was one of the first nations to sign and ratify it as a treaty through Senate action on October 7, 1992.4

The Kyoto Protocol, adopted in 1997, extended the 1992 UNFCCC.5 It became effective in 2005,6 and there are currently 192 parties.7 It was driven by the acknowledgment that global warming impacts are due to man-made CO2 emissions. The key difference with this protocol was the “internationally binding emission reduction targets” based on reductions below individual countries’ 1990 emissions levels.8 The U.S. signed the protocol in 1998, but failed to ratify it through Senate action.9 On December 7, 2009, the UNFCCC parties met in Copenhagen, Denmark. With little success during the meetings, on the final day, the U.S., China, India, and Brazil drafted the Copenhagen Accord, simply encouraging greenhouse gas (GHG) reductions to prevent temperature increases past two degrees Celsius (°C).10

2015 Paris Agreement —On December 21, 2015, the UNFCCC’s Paris Agreement (2015) was adopted, which became effective on November 4, 2016 (30 days after ratification by 55 countries accounting for at least 55 percent of global emissions).11 After signing, the parties can join through a process dictated by each individual legal system,12 which can include an instrument of “ratification, acceptance, or approval.”13 Currently, there are 197 parties to the 2015 Paris Agreement and 149 countries have ratified, including the United States.14

The primary goal of the 2015 Paris Agreement is to keep the global rise in temperature well below 2°C, and to pursue limiting the increase to 1.5°C.15 It was determined that this marker would prevent the worst impacts of climate change, such as rising sea levels and severe droughts.16

Parties committed to nationally determined contributions and their own GHG mitigation strategies to achieve them, as well as public reporting on emissions and implementation efforts.17 The 2015 Paris Agreement accounts for differing capabilities of countries, and although nonbinding in nature, it is legally binding with respect to 1) consistently assessing mitigation plans; and 2) performing to the full extent of the nation’s ability. However, there is no penalty process for failure to meet these binding aspects.18 Climate funding is another element of the 2015 Paris Agreement through voluntary contributions into the Green Climate Fund, which recognizes that not only do different countries’ emissions vary immensely, but so do their financial abilities to mitigate and adapt.19

The instrument the U.S. used to ratify the 2015 Paris Agreement has been questioned. Article 4 of the Paris Agreement does not create a new international legal obligation because there is no binding legal reduction target. It builds upon and reinforces commitments already made under the UNFCCC, which was ratified by the Senate. As such, the 2015 Paris Agreement is an executive agreement. Some groups state that the 2015 Paris Agreement is really a treaty, thus, requiring approval by two-thirds of the Senate under the treaty clause in U.S. Const. art. 2.20 Many cases have discussed the standard for a treaty, and affirm the right of the president to enter into executive agreements that are not required to be ratified by the Senate. More than 90 percent of binding international agreements are undertaken as executive agreements.21 In June 2017, President Trump announced the U.S. will withdraw from the 2015 Paris Agreement on November 4, 2021, pursuant to art. 28 of the Constitution.22

Several states and local governments committed to uphold targets under the 2015 Paris Agreement and remain committed to it.23 Content is the key to the commitments, particularly with local governments. The extent of the commitment to meet GHG reduction targets and how that commitment is implemented, could result in important policy and legal questions. There also is a growing body of climate change-related lawsuits.

The Federal Context
Numerous executive orders, agency directives, planning efforts, and targets were undertaken or mandated under the previous White House administration. This article focuses on a narrow subset. It is clear the new administration’s stance on these initiatives is shifting.

U.S. Army Corps of Engineers — In 2000, sea-level-change considerations were included within the Corps’ planning guidance notebook. Engineering circulars and guidance have been in place to address sea-level rise in civil works projects since 2009. The latest guidance went into effect in 2016, expiring in 2018.24 The Corps also has tools to create vulnerability assessments of nondeveloped natural coastlines or beach protection projects updated for use with this sea-level guidance. These procedures do not apply to the Corps’ regulatory review of permits for private action; rather, they focus on Corps projects supported by congressional funding and authorization, or civil works projects.

National Environmental Policy Act (NEPA) — On August 5, 2016, the White House’s Council on Environmental Quality (CEQ) released guidance on how federal agencies should evaluate GHG emissions and climate change impacts when conducting NEPA reviews for proposed federal actions.25 The focus was on the long-term viability of the project, tying design of alternatives to climate change effects for the useful life of that project. This is especially important for projects in vulnerable areas.

President Trump’s March 28, 2017, executive order, “Promoting Energy Independence and Economic Growth,” directed CEQ to rescind this guidance.26 Given that courts have demanded climate consideration in agency NEPA analyses, this could cause the administration future legal challenges, despite the directive to rescind it.27

State Law, Climate Change, and Sea-Level Rise
State Actions and Agency Efforts —Today, Florida agencies are undertaking certain climate initiatives. The Florida Fish and Wildlife Conservation Commission is monitoring habitat and species impacts.28 The Department of Economic Opportunity produced guides and resources, and is completing pilot planning efforts in several communities.29 The Florida Department of Transportation was involved in the development of a sketch planning tool maintained by the University of Florida to help local governments determine impacts on transportation systems.30 The Florida Department of Environmental Protection has been working on climate-change impacts to coral reefs.31 These efforts provided data and case studies for policy development.

Comprehensive Planning — There are several important factors to consider in the local government comprehensive climate-change planning process:

• Data use in comprehensive plans and plan amendments for future conditions;32

• Sprawl determinations and discouraging sprawl;33 and

• Conservation elements providing long-term goals to protect air quality.34

Some local governments also adopted optional elements in their comprehensive plans to specifically address adaptation, sea-level rise, energy, or a combination of these issues.35 F.S. Ch. 163 also permits the establishment of adaptation action areas.36 Potential factors to consider in establishing such designations include lands with low elevations, areas with a hydrologic connection to coastal waters, or evacuation zones for storm events.37 Goals of the designation include policy development or support in pursuing funding for projects in these areas.

Peril of Flood Legislation in Comprehensive Plans —Beginning in 2015, F.S. Ch. 163 required that comprehensive plan coastal management elements include a redevelopment component outlining principles to eliminate inappropriate and unsafe development in the coastal areas.38

The requirements include:

1) Strategies and engineering solutions that reduce the flood risk in coastal areas;

2) Best practices development to remove real property from flood-zone designations;

3) Site development techniques reducing losses under flood insurance policies;

4) Consistency with flood plain management regulations set forth in 44 C.F.R. Part 60 and F.S. Ch. 161 (coastal construction control lines); and

5) Encouraging participation in the community rating system administered by the Federal Emergency Management Agency to receive flood insurance premium discounts.

Local governments required to have coastal management elements in their comprehensive plans39 will have to eventually comply with the provision. As of May 2017, approximately 43 (or 22 percent) of the local governments explicitly address sea-level rise in their comprehensive plans. Five have physical designations for adaptation action areas.40 Thirteen local governments are deemed in compliance with the new coastal element requirements.41 An additional 12 are in the process of negotiating language to comply.42

Regional Collaboration
Regional collaboration has taken many forms, such as the Southeast Florida Regional Climate Change Compact (including Palm Beach, Broward, Miami Dade, and Monroe counties) and One Bay Resilient Communities in the Tampa Bay Region. Both initiatives provide collaboration, resource exchange, outreach, and data sharing. In particular, these initiatives helped achieve consensus on future estimates of sea-level rise for consistent decisionmaking across jurisdictional boundaries and regional planning efforts.43 Florida’s Regional Councils also have examples of climate projects, such as the Northeast Florida Regional Council’s discussions with the business community through its Public/Private Regional Resiliency Committee44 and the South Florida Regional Planning Council’s pilot and grant-funded initiatives.45

Local Government: The Frontline of Climate-Change and Sea-Level Rise Action
Many local governments led climate-change efforts by developing plans, projects, modeling, data, resolutions, and ordinances. These efforts were spurred by grants, agency or regional partnerships, compliance with new legislation, or strong political leadership given the apparent impacts.46

Drainage, Road Infrastructure, and Levels of Service —Maintaining roads and drainage in the face of rainfall and tidal flooding have long presented difficulties due to Florida’s usual flat and low topography. Roads may suffer from lack of adequate drainage capacity, or along the coast, hazards, such as erosion. As rainfall and tidal conditions change, these issues are exacerbated.

While not directly addressing sea-level rise or climate change, Jordan v. St. Johns County, 2011 Fla. App. LEXIS 11337 (Fla. 5th DCA Jun. 22, 2011), is instructive about local government challenges regarding roads and other infrastructure.47 Property owners sued St. Johns County for private property taking because the Atlantic Ocean was impacting the only road access to their homes and the county had been unable to keep the road in an equivalent condition to other county roads. After the property owners lost at the trial court, the appellate court ruled that “[t]he [c]ounty must provide a reasonable level of maintenance that affords meaningful access, unless or until the [c]ounty formally abandons the road.”48 In many areas, where the road previously existed, there was only wet sand beach with portions entirely washed away by a new inlet. Estimates of the remediation cost were over $13 million up front, and $5.7-8.5 million every three to five years. Government inaction was specifically raised as a cause for the potential taking, although the court did not opine that a taking occurred.

Ultimately, a settlement included an agreement on future levels of road service, recognizing the environmental constraints impacting the future road quality. During the case, the county passed an ordinance relating to levels of service for environmentally challenging locations.49 During 2016’s Hurricane Matthew, the road and properties at issue in the St. Johns County case were heavily damaged.

In Monroe County, a pilot study completed in January 2017 analyzed tidal flooding impacts in two neighborhoods severely impacted by king tides in 2015 and 2016. The effort developed numerous road elevation and stormwater options based on specific flooding scenarios. At the effort’s conclusion, the county adopted a resolution that included a design standard accounting for sea-level rise and a threshold not to exceed seven days of flooding annually for the project’s useful life.50 The final report also included a draft ordinance building upon the St. John’s County environmentally challenging locations concept, adding a design standard and local conditions analysis for feasibility.51 The county planned a more comprehensive analysis to develop a phased approach to addressing road elevation projects, based on future vulnerability levels.

With regard to services, Florida courts distinguish between upgrading and maintenance of infrastructure. The Florida Supreme Court held that the decision to upgrade infrastructure is considered a “planning-level function, to which absolute immunity applies.”52 contrast, the court held that failing to maintain infrastructure is an operational activity that exposes the government to potential liability.53 When government provides this type of infrastructure, it “thereby assume[s] the duty to maintain and operate the system so that it [will] properly drain off expected excess water and prevent flooding.”54 Liability is a fact-specific inquiry considering the project design, function, history, and infrastructure operations. In the face of changing future conditions, such as changing rainfall volumes and tidal inundation, these principles are likely to morph, especially when previously constructed projects can no longer function as designed.

A final case study is Broward County’s development of new future conditions groundwater maps. The purpose is to identify coastal and western areas that will lose storage capacity or have reduced ability to drain to coastal areas. The data allows for better design of stormwater management systems.55

The caselaw and these case studies highlight realities that local governments must consider for new infrastructure construction, improvement, or maintenance. These realities include 1) the obligation to provide (or not) infrastructure service; 2) duty to maintain; 3) managing expectations by establishing levels of service accounting for future conditions; and 4) the value of transparency and notice of what will be possible in the face of changing environmental conditions.

Seawall Design Criteria — Some local governments adopted policies requiring increases in minimum seawall heights in an attempt to fortify against sea-level rise. The City of Miami Beach recently amended its public works manual to require the raising of certain seawall heights. The manual now requires new private and public seawalls be constructed to a minimum elevation of 5.7 feet NAVD (from 3.2 feet previously).56 Existing seawalls that are not being repaired or replaced are permitted to remain, so long as they meet the minimum 4.0 feet NAVD with the structural design to accommodate extension to 5.7 feet NAVD in the future. This new height takes into account sea-level rise projections, design storm events, and coincides with the typical lifespan of a seawall.57

The City of Ft. Lauderdale also passed several ordinances that respond to sea-level rise. Issues addressed by these ordinances include the relationship of dock height in seawall calculations, maximum and minimum seawall heights, and ensuring that public and private seawalls and tidal protection systems remain effective. The group of policies also address maintenance of seawalls in good repair and a citation system for enforcement.58 Still, other local governments commenced discussions that include potentially raising seawall heights to combat sea-level rise. For example, the Town of Hillsboro Beach held workshops on the issue on February 16, 2017, and seems to be heading toward enacting a similar seawall ordinance.59

Federal policy on climate is clearly shifting. National flood insurance reauthorization this year may also provide some insights because incentive programs, such as hazard mitigation grants or the community rating system, face uncertainty. These both have benefits for planning that accounts for future flood risk. The previous administration’s clean power plan, carbon pollution standards rule, oil and gas sector methane emission limits, are all currently being examined or eliminated. More federal rulemaking on these issues is forthcoming or already in progress.

These federal shifts are important to Florida local governments because our national policy shapes the overall funding, scientific, and resource assistance that will be available. For instance, there are already shifts in data availability and funding sources that will impact the availability of science to plan in the future. Despite this, Florida has taken many steps, at the state, regional, and local levels to begin addressing the future reality.

1 United Nations Framework Convention on Climate Change, Background on the UNFCCC: the International Response to Climate Change,

2 United Nations Framework Convention on Climate Change, First Steps to a Safer Future: Introducing the United Nations Framework Convention on Climate Change,

3 International Institute for Sustainable Development, Introduction to the UNFCCC and Kyoto Protocol,

4 Id.

5 United Nations Framework Convention on Climate Change, Kyoto Protocol,

6 Id.

7 Id.

8 United Nations Framework Convention on Climate Change, A Summary of the Kyoto Protocol,

9 United Nations Framework Convention on Climate Change, Status of Ratification of the Kyoto Protocol,

10 BBC News, Copenhagen Deal: Key Points (Dec. 19, 2009),

11 Id.

12 World Resources Institute, FAQs About How the Paris Agreement Enters into Force,

13 United Nations Framework Convention on Climate Change, Ratification of the Paris Agreement,

14 United Nations Framework Convention on Climate Change, Paris Agreement – Status of Ratification,

15 United Nations Framework Convention on Climate Change, Paris Agreement (Dec. 12, 2015),

16 Coral Davenport, Nations Approve Landmark Climate Accord in Paris, The New York Times, Dec. 12, 2015, available at

17 Id.

18 United Nations Framework Convention on Climate Change, NDC Registry,

19 United Nations Framework Convention on Climate Change, EHandbook,

20 Christopher Horner and Marlo Lewis, Jr., The Legal and Economic Case Against the Paris Climate Treaty (May 2017), available at

21 See e.g., Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221 (1986); Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). See also Michael John Garcia,Congressional Research Service, International Law and Agreements: Their Effect upon U.S. Law (Feb. 18, 2015), available at

22 United Nations Framework Convention on Climate Change, Status of Ratification of the Kyoto Protocol at art. 28.

23 See S.B. 559, 2017 Leg., 29th Sess. (Haw. 2017); H.B. 1578, 2017 Leg., 29th Sess. (Haw. 2017); We Are Still In, Open Letter to the International Community and Parties to the Paris Agreement from U.S. State, Local, and Business Leaders,

24 U.S. Army Corps of Engineers, Engineering and Construction Bulletin (Sept. 16, 2016), available at

25 Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 81 Fed. Reg. 51866 (Aug. 5, 2016).

26 The White House Office of the Press Secretary, Executive Order on Promoting Energy Independence and Economic Growth (Mar. 28, 2017), available at

27 See, e.g., Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. 2008) (requiring consideration of climate change in an EIS).

28 See, e.g. Florida Fish and Wildlife Conservation Commission, Climate Change,

29 See, e.g. Florida Department of Economic Opportunity, Adaptation Planning — Planning for Coastal Flooding and Sea-Level Rise,

30 University of Florida, Sea Level Scenario Sketch Planning Tool,

31 See, e.g. Florida Department of Environmental Protection, What is Climate Change,

32 Fla. Stat. §163.3177(1)(f) (2016).

33 Fla. Stat. §163.3177(6)(a)9.a(VIII) (2016); Fla. Stat. §163.3177(6)(a)9.b(IV) (2016).

34 Fla. Stat. §163.3177(6)(d)2 (2016).

35 See e.g., Monroe County, Monroe County Year 2030 Comprehensive Plan, Energy and Climate Element (2016), available at; Broward County Comprehensive Plan, Climate Change Element (2015), available at

36 Fla. Stat. §163.3164(1) (2016) (“Adaptation action area” is “a designation in the coastal management element of a local government’s comprehensive plan which identifies one or more areas that experience coastal flooding due to extreme high tides and storm surge, and that are vulnerable to the related impacts of rising sea levels for the purposes of prioritizing funding for infrastructure needs and adaptation planning.”).

37 Fla. Stat. §163.3177(6)(g)10 (2016).

38 Fla. Stat. §163.3178(2)(f) (2016).

39 195 total = 161 municipalities + 34 counties.

40 Satellite Beach, Village of Pinecrest, Broward County, Ft. Lauderdale, and Yankeetown.

41 West Palm Beach, Ponce Inlet, Santa Rosa County, Boynton Beach, Jupiter, Jupiter Inlet Colony, Sunny Isles Beach, Yankeetown, North Miami, Palm Bay, Clearwater, Broward County, and Pinecrest.

42 Palm Beach, Hillsborough County, Lake Park, Duval/Jacksonville, Sarasota, North Port, Cutler Bay, Levy County, Miami Beach, St. Petersburg, Tampa, and Treasure Island.

43 See Southeast Florida Regional Climate Change Compact, Unified Sea Level Rise Projection Southeast Florida (Oct. 2015), available at; Tampa Bay Climate Science Advisory Panel, Recommended Projection of Sea-Level Rise in the Tampa Bay Region (Aug. 2015), available at

44 P2R2, Public/Private Regional Resiliency: Good for Business,

45 Southeast Florida Regional Planning Council, Improving the Planning Process to Protect Infrastructure From Emerging Coastal Flood Hazards,

46 See, e.g.,2014 National Climate Assessment, Overview Introduction,

47 St. Johns Cnty. v. Jordan, 2011 Fla. LEXIS 2819 (Fla., Dec. 5, 2011). The case settled in 2013.

48 Id.

49 See St. Johns County, Fla., Ordinance 2012-35 (Dec. 11, 2012).

50 Monroe County, Fla., Resolution 028-2017.

51 Monroe County, Fla., Monroe County Pilot Roads Project: The Sands and Twin Lakes Communities (Jan. 2017), available at

52 See Dep’t of Transp. v. Konney, 587 So. 2d 1292, 1296 (Fla. 1991) (holding that a government decision to upgrade an intersection was a planning level decision the government had immunity from).

53 See Dep’t of Transp. v. Neilson, 419 So. 2d 1071, 1073 (Fla. 1982) (affirming the Commercial Carrier holding that “the failure to properly maintain existing traffic control devices and existing roads may also be the basis of suit against a government entity”).

54 Sw. Fla. Water Mgmt. Dist. v. Nanz, 642 So. 2d 1084, 1086 (Fla. 1994) (“Having assumed control of this drainage system and undertaken to operate and maintain said drainage system, [d]efendants, and each of them, had a duty and obligation to prudently operate, control, maintain, and manage said system so that it would work properly and drain off excess waters so as not to cause flooding in the area. Defendants owed said duties and obligations to your [p]laintiffs, residents and/or owners of homes and real property serviced by the drainage system.”).

55 Broward Groundwater Elevation Maps: Predicted Changes and Planned Updates,

56 City of Miami Beach, Fla., Public Works Manual, §A.2(5), available at

57 City of Miami Beach, AECOM, A Research Paper Reviewing Issues and Unintended Consequences Related to Raising Minimum Building Finish Floor Elevations (Apr. 2015), available at

58 See City of Ft. Lauderdale, Fla., Ordinance C-10-44 (Dec. 10, 2010), available at (maximum height standards including dock height in the calculation of allowable seawall height which resulted in a lower elevation for the seawall); City of Ft. Lauderdale, Fla. Ordinance C-16-13 (Jun. 21, 2016), available at (maximum and minimum seawall elevation, allowing dock heights to exceed seawall by no more than 10 inches); City of Ft. Lauderdale, Fla., Ordinance C-16-27 (Dec. 6, 2016), available at (Further raises minimum seawall height to former maximum height 3.9’ and attempts to ensure public/private seawalls remain effective. New seawall height required for new seawalls and those undergoing substantial repairs. Requires maintenance in good repair, creating a system of citation for owners not maintaining their seawalls and providing for a 60-day cure period.).

59 Town of Hillsboro Beach, Fla., Town Commission Workshop Minutes (Feb. 16, 2017), available at

Erin L. Deady is president of Erin L. Deady, P.A., in West Palm Beach. She received her law degree from Nova Southeastern University and practices primarily in the fields of local government, climate, sustainability, energy, and land use.

The author thanks Amity Barnard, Thomas Ruppert, and Fiona Tennyson for their invaluable contributions to this article.

This column is submitted on behalf of the Environmental and Land Use Law Section, Janet E. Bowman, chair, and Susan Roeder Martin, editor.

Environmental & Land Use Law