July 01, 2015 Urban Lawyer

Three-Legged Stool on Two Legs: Recent Federal Law Related to Local Climate Resilience Planning & Zoning

by Sarah Adams-Schoen & Edward Thomas

Sarah J. Adams-Schoen and Edward A. Thomas Esq. serve on the Hazard Mitigation and Land Use Subcommittee of the American Bar Association State and Local Government Law section (ABA SLG).

Adams-Schoen is an Assistant Professor of Law at Touro College Jacob D. Fuchsberg Law Center and Director of Touro Law’s Land Use & Sustainable Development Law Institute. Thomas is an Attorney in private practice and President of the Natural Hazard Mitigation Association.

The authors thank Lynsey R. Johnson, Presidential Management Fellow at the U.S. Department of Housing and Urban Development (HUD), for her contribution to the discussion of the U.S. Department of Housing and Urban Development (HUD) resilience initiatives discussed in Part III.D. infra and Thomas Ruppert, Coastal Planning Specialist, Florida Sea Grant College Program, for his thoughtful comments on a preliminary draft of the article.

This article builds upon a presentation that Adams-Schoen delivered at the 2015 ABA Section of State and Local Government Law spring meeting.

I.  Introduction

Notwithstanding a critical gap between climate change related risks and preparedness in the United States, Congress has yet to pass any federal law expressly addressing climate change hazard mitigation (or any other aspect of climate change) and appears unlikely to do so anytime soon.1 Despite this, the first half of 2015 has seen a number of actions in the other two branches of the federal government with significant implications for local hazard mitigation planning, zoning, and development.2 Of particular note, and as discussed in more detail below, the President issued an Executive Order and the Federal Emergency Management Agency (FEMA) issued draft guidelines that have the potential to affect many state and local actions by, among other things, expanding the federal floodplain boundary.3 In an apparent shot across the bow to states that are, at best, failing to acknowledge climate change related hazards, and, at worst, erecting obstacles to climate change hazard mitigation,4 FEMA also issued guidelines that could, in effect, force state governments to plan for climate change or risk losing federal disaster funding.5 The White House Council on Environmental Quality (CEQ) issued new draft guidance that advises federal agencies to consider the effects of federal actions on climate change and the effects of climate change on federal actions. The CEQ draft guidance appears to have been issued in response to, among other things, criticism that the federal government is providing insufficient support to local decision makers who are primarily responsible for the planning and development of the nation’s infrastructure.6 The Department of Housing and Urban Development (HUD) continues to provide incentives for state and local climate resilience initiatives in the form of grant money and, more recently, a competition.7 And, on May 1, 2015, nearly ten years after the catastrophic flooding of New Orleans from Hurricane Katrina, the Court of Federal Claims issued an opinion that increases the specter of municipal liability for failure to mitigate climate change related hazards.8

II.  The Role of State and Local Governments in Closing a Troubling Preparedness Gap

Global temperatures are increasing and the rate of increase is accelerating, with corresponding increases in sea levels, acidification of oceans, and losses of flood-mitigating wetlands. Storms and other extreme weather events are increasing in frequency and severity.9 Indeed, many communities are already experiencing climate change related threats, including eroding shores, more massive storm surges, more severe storms, salt water intrusion, loss of land, heat waves, droughts, and other extreme weather conditions.10 As Strauss et al. of Climate Central observe with respect to the New York City metropolitan area:

[E]very coastal flood today is already wider, deeper and more damaging because of the roughly 8 inches (IPCC 2013) of warming-driven global sea level rise that has taken place since 1900. [Climate Central’s 2014] analysis finds that this rise has already increased the annual chance of extreme coastal floods in New York City by 50%. Looking forward under a fast sea level rise scenario, [Climate Central] compute[s] a 3-in-4 chance of historically unprecedented coastal flooding in New York City by 2100 — or a 1-in-10 chance under a slow rise scenario.11

Moreover, although mitigation measures can decrease the rate and severity of climate change by limiting the amount of greenhouse gas emissions and increasing carbon sinks,12 such measures are only part of the solution.13 “Much of the change in climate over the next 30 to 40 years is already determined by past and present emissions.”14 Additionally, current and near-future risks from climate change already pose significant enough threats that communities must undertake robust adaptation initiatives to protect public health, property, and infrastructure.15 Moreover, even if every country that has made commitments to reduce its carbon emissions achieved its targets, an assumption that does not reflect historic performance, global temperatures are projected to nevertheless increase more than two degrees Celsius over preindustrial levels, the threshold commonly accepted as necessary to prevent the catastrophic effects of climate change.16 Accordingly, any notion that mitigation alone will protect communities from the threats of climate change is unfortunately nothing more than wishful thinking. Robust adaptation is clearly needed in addition to vigorous mitigation.17

In the United States, municipal governments have made significant contributions to adaptation planning and implementation, at least as compared to the federal and state governments, and many sources laud the extensive work of local governments with respect to adaptation.18 Indeed, municipal regulation of the form and placement of building stock in particular offers an opportunity to create more resilient infrastructure and patterns of development.19 Because we can anticipate the addition of substantial new building stock and infrastructure over the next few decades, local governments that regulate the placement and, in some respects, design aspects of building stock certainly have an opportunity to avoid locking in infrastructure that increases flood and other climate-related risks.20

However, a troubling gap still exists between climate-related vulnerabilities and local preparedness. With respect to climate adaptation planning, U.S. municipalities lag behind their counterparts throughout the world.21 According to a survey administered by ICLEI in 2011, the United States has the lowest percentage of cities pursuing adaptation planning out of all regions surveyed (59%), while Latin American and Canadian cities have the highest (95% and 92% respectively),22 and only 13% of the U.S. cities surveyed had even completed an assessment of their vulnerabilities and risks, the lowest percentage of all regions surveyed.23 Similarly, in November 2014, the President’s State, Local, and Tribal Leaders Task Force concluded that

Many communities [in the United States] have not yet calculated and evaluated risks associated with climate change for infrastructure, public health and safety, or built and natural environments. Insufficient or inaccurate data stymie hazard evaluation and sound mitigation plan development. In particular, out-of-date or inaccurate flood hazard maps impede the efforts of communities to understand and assess vulnerability to sea level rise, coastal storm surge, and riverine flooding and to develop policies and projects to reduce risk. Erosion hazards, which are likely to worsen in many parts of the country due to predicted increases in extreme precipitation events, remain largely unmapped. Communities also lack information about changing wildfire risk, drought and other climate-influenced hazards.24

In response to this vulnerability-preparedness gap, the International Panel on Climate Change in its most recent assessment report highlights “the importance of city and municipal governments acting now to incorporate climate change adaptation into their development plans and policies and infrastructure investments,”25 characterizing “[a]ction in urban centres [as] essential to successful global climate change adaptation.”26

Despite the essential nature of local climate change adaptation and the troubling preparedness gap that exists in the United States, municipalities in the United States report that one of the key obstacles they face is a lack of adequate support from the federal government.27 A 2014 Georgetown Climate Center report on how to improve federal programs to support local climate change preparedness found that many local governments “have been looking to the federal government for help and guidance, only to run into challenges tapping into federal programs and resources.”28 To be sure, Congress continues to remain gridlocked on the issue, but the executive branch has taken a number of actions over the last year to incentivize climate change adaptation at the state and local levels.29 A recent U.S. Court of Federal Claim order may also have the effect of incentivizing local adaptation efforts as well by increasing the likelihood of litigation or liability for failure to act.30

III.  Recent Federal Actions that Have Significant Implications for Local Planning and Development

A.  New Floodplain Management Executive Order and Federal Flood Risk Management Standards

On January 30, 2015, the President issued Executive Order (EO) 13690, regarding federal agencies’ consideration of floodplains, to redefine the regulated floodplain and establish the Federal Flood Risk Management Standard (FFRMS).31 The new EO responds to the President’s June 2013 Climate Action Plan, which directed federal agencies to

update their flood-risk reduction standards for federally funded projects to reflect a consistent approach that accounts for sea-level rise and other factors affecting flood risks. This effort will incorporate the most recent science on expected rates of sea-level rise (which vary by region) and build on work done by the Hurricane Sandy Rebuilding Task Force, which announced in April 2013 that all federally funded Sandy-related rebuilding projects must meet a consistent flood risk reduction standard that takes into account increased risk from extreme weather events, sea-level rise, and other impacts of climate change.32

The EO expands and amends Executive Order 11988, issued by President Carter in 1977, which required federal agencies to avoid, to the extent possible, the adverse impacts inherent in occupying the floodplain.33 Pursuant to the new EO, FEMA issued draft “Revised Guidelines for Implementing Executive Order 11988, Floodplain Management,” which further explain how federal agencies are to consider floodplains under the Executive Order.34 The new EO and guidelines apply to a wide range of federal investments ranging from local flood protection projects to funding for federal facilities to permit approvals, including, for example, federal approvals for wetland activities covered by Section 404 of the Clean Water Act.35 The comment period on the revised guidelines closed on April 6, 2015.36

One aspect of the new EO and revised guidelines that should be of particular interest to state and local law practitioners is the expansion of the boundary of federal floodplains beyond the FEMA defined special and moderate flood hazard areas (often referred to as the 100-year and 500-year floodplains, respectively).37 These portions of the flood- plain under EO 11988 have been based on calculations performed by FEMA for the purpose of determining a Base Flood Elevation (BFE) for flood insurance rating purposes. FEMA standards have required that flood levels are determined by the projection of flood risk based on historic data that fail to consider numerous flood risks, including, for example, projected sea level rise and increased frequency and intensity of storms, and risks related to stormwater drainage in areas with less than one square mile of drainage.38 The new EO requires the use of projections that take into consideration future climate change related risks, as opposed to relying solely on historic data, and redefines floodplain to expand both the horizontal and vertical boundaries of the floodplain applicable to all federal actions.39 Specifically, the new federal floodplain must be calculated by one of four methods: (a) “climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science”; (b) depending on the criticality of the activity, adding two or three feet to the FEMA base flood elevation (BFE) calculation of the 1% flood; (c) using the .2% FEMA flood calculation, often called the 500-year flood; or (d) “any other method identifiable in an update to the FFRMS.”40 The expanded floodplain boundary applies to all federal actions, which include many state and local actions that require a federal permit or federal funds.41

The revised guidelines also require a multi-step “practicable alternatives analysis” be performed for any federal action that is proposed within or that may affect the expanded federal floodplain.42 Additionally, the revised guidelines increase the public notice and comment requirements for federal actions located within, or that may affect, the expanded floodplain.43

B.  New FEMA Guidance Requiring Consideration of Future Climate Risks in State Hazard Mitigation Plans

Although states are currently required to adopt hazard mitigation plans in order to qualify for certain disaster funds, under past FEMA guidelines state governments could assess their potential risks based on historic data and, in essence, ignore risks from the foreseeable effects of climate change, including rising sea levels, higher storm surges, and more frequent and intense storms, droughts, and heat waves.44 In March 2015, FEMA issued a State Mitigation Plan Review Guide, following notice and comment.45 As of March 6, 2016, the new Guide will be FEMA’s official policy on the natural hazard mitigation planning requirements of Title 44 of the Code of Federal Regulations (CFR) Part 201, and FEMA’s interpretation of federal regulations for state hazard mitigation plans.46

Significantly, under the new guidance, state mitigation plans must consider the probability of future hazards taking into consideration changing future conditions, including changing climate and weather conditions.47 The Guide explains that future climate change-related risks must be considered because “[p]ast occurrences are important to a factual basis of hazard risk; however, the challenges posed by climate change, such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding, and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future.”48

Recognizing the difficulty of quantifying climate change related risks at a state level, the Guide provides that “states are expected to look across the whole community of partners (for example, public, private, academic, non-governmental, etc.) to identify the most relevant data and select the most appropriate methodologies to assess risks and vulnerability.”49 Nevertheless, with the exception of states like New York, which has already begun to develop statewide climate-related projections and to assess related risks,50 states may be hard pressed to quantify future hazard probabilities by the time their next hazard mitigation plan update is due, given the complexity of scaling global climate data to a regional scale and identifying related risks within a relatively short time frame.51 Indeed, recognizing local governments’ unmet need for climate-related data and other support from the federal government, the Government Accountability Office (GAO) recommended in a 2013 report that a federal entity designated by the Executive Office of the President work with agencies to: (1) “identify for decision makers the ‘best available’ climate-related information for infrastructure planning,” and (2) “clarify sources of local assistance for incorporating climate-related information and analysis into infrastructure planning . . . .”52

The new FEMA guidance also recognizes that, to reduce risk and increase resilience, the state mitigation planning process and program must be more than an emergency management plan; rather, state mitigation planning must include other effected sectors, including, where applicable, economic development, land use, housing, health and social services, and infrastructure.53 Additionally, interpreting 44 CFR §201.4(c)(6), which requires that a state mitigation plan “be formally adopted by the State,” the new guidance clarifies that state hazard mitigation plans must be adopted by the highest elected official in the state or his or her designee.54 The guidance states that such adoption “demonstrates commitment to the mitigation strategy and may serve as a means to communicate priorities to entities within the state agencies regarding vulnerability and mitigation measures. Plan adoption by the state’s highest elected official or designee may increase awareness of and support from the state agencies with mitigation capabilities and responsibilities, not just the state agency responsible for the mitigation planning program.”55

C.  Updated Draft CEQ Guidance Advises Federal Agencies to Consider the Effect of Federal Actions on Climate and the Effect of Climate on the Federal Actions

On December 18, 2014, CEQ released an updated draft guidance that superseded the draft greenhouse gas and climate change guidance released by CEQ in February 2010.56 The draft guidance suggests how federal agencies should consider the effects of greenhouse gas emissions and climate change in their National Environmental Policy Act (NEPA) evaluations of proposed Federal actions and identifies “opportunities for using information developed during the NEPA review process to take into account appropriate adaptation opportunities.”57 The draft guidance counsels agencies to consider both the potential effects of a proposed action (and its reasonable alternatives) on climate change, as indicated by its estimated greenhouse gas emissions, and the implications of climate change for the environmental effects of a proposed action (and its reasonable alternatives).58

The revised draft guidance appears to respond to criticism that the federal government was advancing federal actions without a coordinated approach to the assessment of climate risks and was failing to provide adequate information about climate risks to local decision makers to support infrastructure planning and development. In its 2013 report, the GAO concluded that, although the federal government plays a critical role in producing the information needed to facilitate informed local infrastructure adaptation decisions, this information is not easily accessible to local decision makers.59 The GAO noted that updating and finalizing the CEQ guidance is one of several federal efforts under way to facilitate more informed local adaptation decisions.60 The governors, mayors, and other local leaders on the President’s Task Force on Climate Preparedness and Resilience also recommended in their report to the President in November 2014 that CEQ finalize its 2010 guidance. The Task Force noted specifically that, because CEQ had yet to finalize the 2010 draft guidance, “projects and investments are being advanced without adequate and coordinated consideration of the project design or alternatives relative to climate impacts and greenhouse gas emissions, a direction that generates unacceptable public health, safety, and financial risks for communities.”61

The revised draft guidance applies to all proposed federal actions, including federal site-specific actions, federal grants, federal rulemaking actions, and federal land and resource management decisions.62 However, it is unclear what consequence a federal agency that fails to follow the guidance will face because the guidance states expressly that it is a set of policy recommendations and is not legally binding.63 

As of May 2015, CEQ had not finalized the revised guidance. The comment period on the revised draft guidance closed March 25, 2015.64

D.  HUD Resilience Activities

Although the President has directed all federal agencies to engage in adaptation planning,65 HUD’s approach to resilience in particular has the potential to significantly effect local disaster preparedness. In addition to billions of dollars per year in physical infrastructure expenditures, HUD is one of the largest sources of funding for long-term disaster recovery.66 HUD’s Community Development Block Grant-Disaster Recovery (CDBG-DR) is a supplemental appropriation to state and local governments for unmet housing, economic, and infrastructure needs.67 Although CDBG-DR is only appropriated on an ad hoc basis, the annual CDBG program is often a critical resource for state and local governments working during the recovery process to increase resilience by, for example, helping to fund elevations and buyouts.68

Currently, HUD is running the National Disaster Resilience Competition. The competition’s goal is to fairly allocate the remaining one billion dollars allocated through Public Law 113-2 CDBG-DR funds.69 This is a two-phase competition where eligible applicants frame a resilience approach in Phase 1, and, if successful, will be invited to expand the resilience approach in Phase 2. Applicants will be awarded funds if they are successful in Phase 2.

Additionally, HUD established an internal Resilience Council to ensure all HUD activities incorporate resilience to natural disasters and climate-related threats.70 The Council developed and is currently working to implement the agency’s Climate Change Adaptation Plan.71 According to the plan, HUD is identifying threats and adapting policies and investments to help communities better prepare and respond to the effects of climate change, including approaching rebuilding in a way that increases resilience.72

Among the more than two dozen proposed actions, the plan proposes that the agency update its floodplain management regulations to require that “projects involving new construction or substantial improvement be elevated additional footage above the base flood elevation, as determined by FEMA’s best available data.”73 The plan also calls for considering the effects of climate change on vulnerable communities when conducting NEPA reviews of proposed HUD actions,74 reviewing and establishing building standards for new construction and substantial rehabilitations to incorporate sustainability and resilience measures,75 and encouraging Community Planning and Development (CPD) grantees to discuss climate-related risk and actions needed to minimize potential impact of these risks on vulnerable populations served by CPD programs in their Consolidated Plans.76

E.  An Interesting Twist on Municipal Liability for Failure to Adapt

Given the clear role for local governments in adaptation planning and implementation,77 some scholars and commentators question whether local governments will soon face liability for failure to plan for and implement climate change adaptation measures.78 Commentary on the potential for municipal liability for failure to adapt has focused primarily on tort liability.79 However, at least one scholar, Christopher Serkin, has argued that regulatory failure to protect property in the face of climate change could amount to an unconstitutional taking.80 And, on May 1, 2015, the U.S. Court of Federal Claims increased the specter of municipal liability for failure to adapt to climate change risks when it found the U.S. Army Corps of Engineers (USACE) liable for damage caused by temporary flooding from Hurricane Katrina and other storms under a takings theory based on USACE’s failure to maintain a navigational channel that USACE had constructed in the 1960s.81

Relying in large part on the U.S. Supreme Court’s 2012 decision in Arkansas Game & Fish Commission,82 Judge Susan Braden ruled in St. Bernard Parish Government that USACE’s failure to properly maintain the Mississippi River–Gulf Outlet (“MR-GO”), a seventy- six mile long navigational channel constructed, expanded and operated by the Corps, resulted in a taking of private property without just compensation in violation of the Takings Clause.83 Judge Braden found that the Corps’ negligent design and failure to maintain the MR-GO exacerbated flood damage from Hurricane Katrina and several subsequent storms, and, although temporary, wrongfully deprived landowners of the use of their property.84

According to Judge Braden, to prove a temporary taking, a plaintiff must show: (1) a protectable property interest under state law; (2) the character of the property and the owners’ “reasonable-investment backed expectations”; (3) foreseeability; (4) causation; and (5) substantiality.85 Because St. Bernard’s Parish involved affirmative governmental actions (i.e., negligent expansion and maintenance of the navigational channel), the case leaves open the question of whether a government entity could be liable for failure to take any action in the face of foreseeable climate-related risks.

Because the consequences of destructive storms are foreseeable and at least in part attributable to failures in the legal system, Maxine Burkett argues that local governments could face tort liability for failure to adapt to climate change.86 Burkett posits that, although no affirmative duty exists for governments to provide protection from natural hazards, once a local government begins instituting adaptation measures that action triggers a duty to adapt reasonably under the circumstances and failure to do so can result in liability for negligence.87 The Fifth Circuit ultimately rejected tort theories of liability in the Katrina litigation as violative of governmental immunity under the Flood Control Act (FCA) and discretionary-function exception to the Federal Tort Claims Act (FTCA)88 But, in St. Bernard’s Parish, by basing Takings Clause liability in large part on USACE’s negligent expansion and failure to maintain MR-GO, the court essentially expanded Takings Clause liability to encompass governmental negligence that exacer- bates weather-related damage to property.89

So far, in the United States, plaintiffs’ claims against local governments have not extended to negligent failure to adapt to climate change. Rather, plaintiffs injured by flooding have brought actions against local governments alleging that the municipalities’ affirmative acts of negligent design, construction or operation of flood control structures caused the plaintiffs’ injuries,90 and, in at least one instance, plaintiffs injured by flooding brought an action against a county government claiming that the county’s negligent regulation of development on an adjacent property caused plaintiffs’ damages.91 With respect to the former actions, liability has tended to hinge on whether the municipality’s conduct was statutorily immune92 and, if it was not, whether the plaintiffs proffered sufficient proof of negligence and causation.93 With respect to the latter action, the court held that the county owed no duty to homeowners to ensure that development of an adjoining subdivision would not create a risk of flooding the homeowners’ property.94 St. Bernard Parish’s application of Arkansas Game & Fish, however, leaves open the possibility that a municipality’s negligent regulation of property that exacerbates flooding on that property or other properties could constitute a taking.

Whether or not the liability theory of St. Bernard’s Parish survives appeal or gains traction in other courts, the court’s imposition of governmental liability for negligently exacerbating flood damage could open the floodgates, so to speak, of litigation against government bodies for inadequately preparing for sea level rise, wild fires, drought, and other climate-related risks.95

III.  Conclusion

Over the past year, the federal government has taken a number of steps that could help state and local governments get much-needed support for local resilience initiatives. By even partially filling the climate resilience policy void at the national level, recent executive actions have the potential to provide incentives, technical guidance and coordination that state and local governments need to effectively plan for current and future climate-related hazards.

However, the federal government continues to provide climate hazard mitigation support only at the periphery — that is, through executive actions, many of which are merely advisory. This tenuous approach is occurring notwithstanding knowledge that state and local governments, which have been delegated much of the authority relevant to climate change adaptation, need federal support in order to take effective action to close the troubling preparedness gap that exists in the United States. The result is a federal scheme akin to balancing a three-legged stool on two legs, and the risk of toppling — or in this case of suffering massive human and property losses — falls in large part on the state and local governments that are responsible for local adaptation planning.