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change or risk losing federal disaster funding.5 The White House Council on Environmental Quality (CEQ) issued new draft guidance that advises federal agencies to consider the effects of federal actions on climate change and the effects of climate change on federal actions.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

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