Transcript 2015 11 6 Hester

Climate Change and
Legal Responses to Sea Level Rise
Prof. Tracy Hester
University of Houston Law Center
Nov. 6, 2015
Law and Sea Level Rise
Highways at risk: SLR 2 feet
Highways at risk: SLR 4 feet
Highways at risk: storm surge at
elevations below 18 feet
Highways at risk: storm surge at
elevations below 24 feet
Options to Respond to SLR
Legal Responses to SLR
• First level: legal requirements to accommodate, adapt or retreat
• Second level: legal constraints on SLR responses
• Third level: legal liability for SLR and responses
Level One: Requirements to Plan or
Adapt
Adaptive infrastructure – the sad tale of State Highway 87
Adaptive management: sea level rise
Level One: Federal Planning and
Adaptation
• Planning requirements – most active area of legal development
– White House Climate Action Plan (2013)
– Coastal Zone Management Act
– FEMA Disaster Planning
– Flood Insurance Program
Level One: State Requirements for SLR
Strategies and Permit Frameworks
• Explicit responses: state laws or executive orders requiring
coordination and planning to respond to SLR
– Massachusetts Global Warming Solutions Act
– NY:
• State Sea Level Rise Task Force (2007 NY Laws ch. 613)
• Community Risk and Resiliency Act (2014)
– Rhode Island
• Tag-alongs – SLR considered as part of other programs
– Florida – Community Planning Act and Community Resiliency
Initiative
– Maryland Climate Change Commission
Level One: SLR Planning and Adaptation
On the Other Hand….
• North Carolina HB819
• Florida: unofficial policy
banned use of “climate
change,” “global warming”
and “sea level rise” (now
“nuisance flooding”)
• Tennessee
Adaptive management: enlisting natural
resources to the effort
Lone Star Coastal Recreational Area
Also the NJ Blue Acres
program, RESTORE Act
funding for coastal
marshes, and Georgia
wetlands program.
Level Two: How Environmental Laws
Affect SLR Strategies and Responses
• Reverse environmental impact statements
– NEPA usually requires assessment of impact that federal action
has on environment
– Reverse environmental impact assessments require review of
how environmental changes – including SLR – affect a
proposed federal action
– Fast emerging area of law, but limited impact on state or private
actions if no federal involvement
Level Two: How Environmental Laws
Affect SLR Strategies and Responses
• Takings claims
– Rolling easements as
SLR strategy
– Problem – whether
coastal land owners can
claim deprivation of
property
– Severance v. Patterson
(Tex. 2012)
Level Two: How Environmental Laws
Affect SLR Strategies and Responses
• Endangered Species Act
– Section 4 – list as endangered
– Section 7 – consult re jeopardy
– Section 9 – prohibit “takes”
• Strategies: Habitat Conservation
Plans; Incidental Take Permits;
Candidate Conservation
Agreements
SLR Responses in Texas: ESA Challenges
Level Three: Liability for Sea Level Rise
• Climate torts
– Public nuisance
– Federal lawsuits –
limited success
– State law actions
– But… Texas, Georgia
• Public Trust lawsuits
Level Three: Liability for Sea Level Rise
Level Three: Liability for SLR to small
island developing states
Tuvalu, Palau
- Limited options: Sand
transfer (island triage);
harden beaches; protect
water supplies
- Relocate (refugees)
- Liability under
international law?
(UNFCC Loss and
Damage negotiations)
Questions?
Professor Tracy Hester
University of Houston Law Center
[email protected]
713-743-1152 (office)