Upload
lylien
View
220
Download
1
Embed Size (px)
Citation preview
©2013 Vinson & Elkins LLP Confidential & Proprietary
Legal Barriers & Bridges toClimate Change Adaptation
Margaret E. Peloso, JD, Ph.D.
Carbon Management Technology Conference
October 23, 2013
©2013 Vinson & Elkins LLP Confidential & Proprietary
Sea Level Rise Threatens Key Coastal Infrastructure
The Need to Adapt
Yoskowitz et al., The Socio-Economic Impact of Sea Level Rise in theGalveston Bay Region (2009).
©2013 Vinson & Elkins LLP Confidential & Proprietary
Increased Storminess Disrupts Business
The Need to Adapt
Source: AP/John Minchillo
http://abcnews.go.com/US/transportation-york-city-open/story?id=17600758
Source: NPR
©2013 Vinson & Elkins LLP Confidential & Proprietary
Changes in Water Availability Present Challenges
The Need to Adapt
©2013 Vinson & Elkins LLP Confidential & Proprietary
Changes in Water Availability Present Challenges
The Need to Adapt
©2013 Vinson & Elkins LLP Confidential & Proprietary
Policy Responses to Sea Level Rise
Barrier 1: Property Rights and the TakingsClause
• CoastalEngineering
– Armoring
– Beach nourishment
• ManagedRealignment
– Rolling easements
– Economicincentives
©2013 Vinson & Elkins LLP Confidential & Proprietary
The Takings Clause
Barrier 1: Property Rights and the TakingsClause
• The 5th Amendment of the Constitutionforbids the taking of private propertywithout just compensation.
• Two types of takings
– Physical
– Regulatory
©2013 Vinson & Elkins LLP Confidential & Proprietary
Regulatory Takings
Barrier 1: Property Rights and the TakingsClause
• When government regulation too intrusive, it isequivalent to a physical invasion.
• Lucas: some government regulations are so intrusivethat they are equivalent to physical invasion
– Background principles are key.
©2013 Vinson & Elkins LLP Confidential & Proprietary
The Public Trust Doctrine as a Bridge?
Barrier 1: Property Rights and RegulatoryTakings
• State holds title tosubmerged lands intrust for the public
©2013 Vinson & Elkins LLP Confidential & Proprietary
Federal programs reducedisaster recovery costs borneby local communities
• National Flood InsuranceProgram
• Stafford Disaster Relief
• Rebuilding Tax Credits
Mismatch of Costs and Benefits in Coastal Development
Barrier 2: Federal Disaster Relief
www.msc.fema.gov
©2013 Vinson & Elkins LLP Confidential & Proprietary
Environmental Protection Agency
Barrier 3: Scope of Agency Authority to Adapt
• Evaluating legal basis for incorporating climate changeimpacts in setting new standards and permits under CWAand CAA
• Determining long-term environmental and economicconsequences of climate change when incorporatingadaptation measures in proposed actions
©2013 Vinson & Elkins LLP Confidential & Proprietary
U.S. Fish and Wildlife Services / Department of Interior
Barrier 3: Scope of Agency Authority to Adapt
• Development of new policies (e.g. managed relocation)
• Revisions of existing policies (e.g. redefining whatconstitutes native, invasive and exotic species)
• Identifying new and revising existing laws, polices andguidance to provide incentives to mitigate climate changeby reducing agency’s carbon footprint
• Trans-boundary issues related to cross-border species
©2013 Vinson & Elkins LLP Confidential & Proprietary
U.S. Forest Service / Department of Agriculture
Barrier 3: Scope of Agency Authority to Adapt
• Enhance capacity of forests and grasslands to adapt toenvironmental stresses of climate change and maintainecosystem services
• Assess how land management activities can be modifiedto better facilitate adaptation at various spatial scales
• Effective nationwide integration and coordinationmechanisms
• Strategies on integrated vegetation management,biomass, open space, ecological restoration, and water
©2013 Vinson & Elkins LLP Confidential & Proprietary
Army Corps of Engineers / Department of Defense
Barrier 3: Scope of Agency Authority to Adapt
• Developing methods and procedures to addressnonstationarity in water resource management
• Working with States and interstate bodies to incorporateIntegrated Water Resources Management and adaptationplanning into programs
• Working with States to identify flood risk and droughtmanagement
• Developing benchmarks for incorporating adaptivemanagement into water projects, operational proceduresand planning strategies
©2013 Vinson & Elkins LLP Confidential & Proprietary
The Biggert-Waters Flood Insurance Reform Act of 2012
Bridge 1: Flood Insurance Reform?
• Reauthorizes NFIP through 2017
• Premium reform
• Limitations on the availability of grandfathered premiums
• Improved flood risk mapping
• Establishment of reserve fund
• Creation of repayment schedules
©2013 Vinson & Elkins LLP Confidential & Proprietary
• Incentive to elevate
– Elevating building aboveFEMA flood elevationlevel lowers premiumsignificantly
– E.g., $250,000 home in A-zone built 3 feet aboveflood elevation level willcost ~$376/year; built atflood elevation level =$7,203/year
New FIRMs and Post-Sandy Rebuilding
Bridge 1: Flood Insurance Reform?
Source: Wesportnow.com
Source: Fema.gov
©2013 Vinson & Elkins LLP Confidential & Proprietary
CSOs and the Challenge of Sea Level Rise
Bridge 2: Green Infrastructure
Source: Greatlakes.orgSource: HudsonRiverkeeper.blogspot.com
Source: Cincinnati.comSource: Bridgemi.com
©2013 Vinson & Elkins LLP Confidential & Proprietary
Bridge 2: Green Infrastructure
Source: EPA.gov
Source: EPA.gov Source: EPA.gov
Source: EPA.gov
©2013 Vinson & Elkins LLP Confidential & Proprietary
Force Majeure as a Driver of Corporate Adaptation
Bridge 3: Force Majeure
Source: NY Times
http://www.pioga.org/photo_images/177_large.jpg
http://texasclimatenews.org/wp/?p=2839http://www.cokecce.com/corporate-responsibility-sustainability/water-stewardship
©2013 Vinson & Elkins LLP Confidential & Proprietary
Climate Change and Force Majeure
Bridge 3: Force Majeure
• A force majeure clause “protects theparties in the event that a part of thecontract cannot be performed due tocauses which are outside the control of theparties and could not be avoided byexercise of due care.” Black’s LawDictionary 645 (6th ed. 1990).
©2013 Vinson & Elkins LLP Confidential & Proprietary
General Approaches to Force Majeure
Bridge 3: Force Majeure
• Force majeure is a pure provision of contract law
• Force majeure includes both contractual and common law aspects.
– Typically states following this interpretation of force majeurerequire a showing that the event was unforeseeable at the timeof contracting.
Key Questions:
– Are disruptive climate events truly unforeseeable?
– What must parties do to prove that the disruption could not havebeen avoided through the exercise of due care?