By Kevin Stark
Well, that’s different.
Until negotiations kicked off in Paris this month, a goal of curbing global warming to less than 2 degrees Celsius (3.6 degrees F) cseemed like the arduous but obtainable goal. As talks began, it quickly became clear that world leaders want an even sharper curb in fossil fuel emissions to limit warming to 1.5 degrees Celsius.
“I think we should embrace it as a legitimate aspiration,” said Secretary of State John Kerry in a live interview from the Paris summit.
A rough climate deal was first sketched in Kyoto, Japan back in 1997 in Kyoto but it failed.
Addressing climate change takes all of us, especially the private sector going all-in on clean energy worldwide. https://t.co/qQ6wCZUR1Z
— President Obama (@POTUS) November 30, 2015
But sentiments seem to be changing. With 1 degree Celsius in global temperature rise (that’s nearly 2 degrees Fahrenheit) already linked to extreme weather, increasing drought and flooding, the stakes are much higher less than 20 years later.
The climate negotiations in Paris may prove that world leaders are capable of fast political movement. But response may not reverse course soon enough. A growing chorus of academics and city-level planners are saying that major cities on the coastal U.S.—where nearly 125 million people or 39 percent of Americans live—are not preparing for the inevitable rise in sea levels.
Legal experts are also looking at cases that could set a precedent to hold policymakers accountable for inaction if disaster were to strike in future generations.
“There is so much that we are doing as a society in the United States that does not meet good standards of engineering excellence, architectural excellence, or community development.”
– Edward Thomas, Natural Hazard Mitigation Association
The law encourages action based on a “standard of care” that should be exercised by a government agency or business. Individuals with specific training and expertise—architects, engineers, scientists—are held by law, in theory, to an even higher standard of care (although, the definition is debatable and often ends up being defined by a jury for a specific situation).
Edward Thomas, now an attorney and the president of the Natural Hazard Mitigation Association, but he worked for the federal government for 35 years coordinating federal response to over 200 disasters and emergencies. A former peanut-company executive who was sentenced to 28 years in prison for knowingly shipping contaminated peanut butter to stores across the country, Thomas wrote this fall in Governing, a national magazine that focuses on civic government. Nine people died and hundreds got sick.
A south Georgia jury convicted Steve Parnell, the executive of the Peanut Corporation of America (now defunct), on counts of fraud, conspiracy and other charges.
Thomas argues that this obscure, and unprecedented, peanut punishment signals an important shift in legal precedent in which more courts are holding powerful people to account for failure to prevent harm. It remains unclear if this precedent could be applied to coastal development in the face of rising ocean levels. But Thomas writes that corporate and civic leaders are being held accountable in civil—and in the most serious cases, criminal—court when they put the public at risk.
Decision-makers “may be held accountable for development that puts people in harm’s way,” he said. And that could mean development in coastal areas likely to flood.
“There is so much that we are doing as a society in the United States that does not meet good standards of engineering excellence, architectural excellence, or community development,” Thomas said.
While many coastal cities like New York and San Francisco are studying the threat of climate change induced sea level rise, regulation that would protect private development from future rising seas is still being drafted. And no regulations prevent private development in areas at risk of flooding with rising oceans. San Francisco produced guidance documents to help local planners protect public projects from climate threats—New York State has adopted a similar framework.
Adaptation experts agree that guidance documents are a good start and that any regulation must be able to adapt to the science as it evolves, but legal experts say that when a public official has knowledge of an impending threat—even as long term, slow-rolling threat like the one posed by sea level rise—failure to do something can be construed as an act in itself.
“If you know that the whole system is going under and that there is a high likelihood that deaths or property damage can result from failing to alter your building codes or your zoning, once the knowledge is out there it becomes difficult.”
-Victor Flatt, University of North Carolina School of Law
Nancy Girard is the former commissioner of the environment department for the City of Boston. In this capacity, she oversaw all of the preservation work for the city of Boston as the commissioner.
Girard said that Boston and other coastal cities need to adequately assess their neighborhoods for the threat of sea level rise and redefine zoning laws to clarify where developers should be building new homes and businesses. She said that sea level rise regulation “needs to have teeth.” And right now, she said regulation is still “in its infancy” and “you have developers out there saying, great, there is disarray right now, I can get what I want.”
Inaction can be a policy statement in itself, and one for which leaders could potentially be held responsible. “You are enforcing by not enforcing,” said Victor Flatt, a law professor and the director of the Center for Law, Environment, Adaptation, and Resources at the University of North Carolina School of Law.
“If you know that the whole system is going under and that there is high likelihood that deaths or property damage can result from failing to alter your building codes or your zoning, once the knowledge is out there it becomes difficult,” he said.
Increasingly, officials in municipalities like San Francisco, New York, Boston and other locals have access to a wide range of detailed inundation tools, from government agencies like NOAA and research groups like Climate Central. Some officials say government should prepare cautiously for sea level rise because projections fall in ranges and there is still some scientific uncertainty. But the science is increasingly clear.
The Intergovernmental Panel on Climate Change, the National Climate Assessment, several independent research groups found that average high tides will be about 3 feet higher by the year 2100. These models all have an upper range, which is often conversationally defined as “worst-case scenarios” in which the world continues its business as usual growth in greenhouse gas emissions. With “worst case scenario,” several predictions chart this rise at 4.6 feet by 2100.
Sea level rise so far has tracked the upper range of past projections, according to observations in recent years. While several feet of sea level rise would be a troubling concern for coastal communities, cities need to also plan for severe weather—storm surges, hurricanes, spring and king tides.
“There are a lot of places where you could buy a house now that maybe has never flooded, but by the end of the mortgage cycle, it could be flooding every other year.”
Amir AghaKouchak, University of California at Irvine
While city planners developing new neighborhoods need to be thinking about what a city will look like at the end of the century, 2100 may seem like a long time away to the average person. That’s one reason why activating the public around the slow-rolling problems associated with sea level rise is so difficult.
Instead of thinking about extreme events like hurricanes, some researchers are instead focused on the already occurring increases in roadway floods during heavy rains, extreme high tides, and other similar short-term events.
To some it is just an inconvenience, but researcher Amir AghaKouchak, a professor of civil engineering at the University of California at Irvine, said, “nuisance flooding” is going to happen with increasing frequency “almost everywhere” along the coastal United States by the year 2050.
“There are a lot of places where you could buy a house now that maybe has never flooded, but by the end of the mortgage cycle, it could be flooding every other year,” he said.
AghaKouchak’s research found that nuisance flooding in many coastal communities will double or triple in the next several decades. This sort of flooding can disrupt business, close schools, and pose health risks.
While direct legal pressure is not being applied to city officials as yet, environmental activists are pressuring Attorney General Loretta Lynchto investigate corporate leaders for hiding the risks of climate change from the public.
Leaders of more than 40 of the largest environmental groups wrote a letter to Lynch after news reports that the company Exxon Mobil knew about the effects of climate change as early as the 1970s, but chose to “mislead the public about the crisis in order to maximize their profits from fossil fuels,” according to the letter.