Category: Law & Justice

Wisconsin reservation highlights success of managed retreat

Wisconsin reservation highlights success of managed retreat

By Georgina Wade

With global temperatures on the rise combined with a significant increase in the frequency of extreme weather events, investigations into methods of staving off climate change’s most dire consequences are continually in the works. And as an inevitable phenomenon at the moment, adaptation is the key response to minimising the unfavourable effects of climate change.

One such approach in discussion is managed retreat – in other words, deliberately getting out of harm’s way. Managed retreat involves the strategic relocation of assets and people away from areas at risk, enabling restoration of those areas to their natural state.

While migration is far from a simple solution and comes with its own set of complications, a Wisconsin reservation offers a climate success story.

The relocation of Odanah

In 1960, the village of Odanah, Wisconsin was up to its neck in floodwaters. The town, home to thousands of members of the Bad River Band of the Lake Superior Chippewa Tribe, had been built on the banks of the Bad River in the middle of a flood plain.

The flood had a magnitude 1.25 times the 100-year recurrence interval and became a turning point in the village’s history.

Three years later, the Bad River Housing Authority was established, and the first displaced families moved into new houses a few miles up the highway. In the next three decades, waves of people would move out of the flood plain until virtually the entire town had relocated to higher ground. And the relocation could not have had more optimal timing, as the real monster, in terms of quantity of water, came through directly afterwards.

Flooding in Wisconsin during the summer of 2016 resulted in damages estimated at $30 million USD with the state governor declaring a State of Emergency after rainfall amounts reaching 12 inches occurred within an eight-hour period.

Nicholas Pinter, a geologist at the University of California, Davis, says that moving out of the flood plain before the big flood is almost unheard of, which is exactly what makes the Odanah success story so unique.

“In a way, Odanah was very successfully moved right before the monster flood, the 2016 flood, came through,” he said. “That saved many hundreds of structures from potential flood damage.”

Quantifying the damage avoided

To fully understand the magnitude of managed retreats on minimising damages, the next step is to quantify the damages avoided. Pinter and James Rees, a student at the University of California, Davis, are hoping that hard numbers will be helpful for other governments trying to make similar decisions.

Long-term risks are notoriously difficult for local governments to plan for due to the complexities and uncertainties involved, and this is especially true for disasters like floods, which have a low likelihood of happening in any given year.

But using Odanah as a focal point, the duo is working at combining old maps with satellite data in an attempt to quantify the amount of damage that would have occurred in 2016 if the town had failed to move prior to the flood.

Use of migration as a risk reduction and adaptation strategy

Estimates vary widely, but between 25 million and 1 billion people could be on the move or permanently displaced due to climate risks by 2050, with 200 million being the most widely cited estimate, according to a 2015 study.

According to researchers, voluntary migration can lessen the risk of displacement by reducing exposure to climate hazards, and is therefore a contribution to individual and societal adaptation. Serving as an autonomous adaptation strategy, voluntary migration may appear as a reliable fix. But conversely, not everyone is equally able to act in this way to avoid climate impacts, or indeed wants to.

For one, those who lack the resources and networks to escape deteriorating environmental conditions may be unable to move, and therefore trapped in conditions of vulnerability. Migration can be relatively expensive with many social and legal barriers in the way, making it a rather poor bet for households already on the brink. Estimates suggest that the number of people unable to move away from climate change degraded areas may climb into the tens of millions by 2050.

Additionally, forced migration can be connected to loss of land, culture, identity and even sovereignty. In the case of Odanah, the Lake Superior Chippewa Tribe’s existence in Wisconsin is itself the result of a relocation forced by invading Europeans who drove them West. More recently, the Indian Relocation Act of 1956 prompted relocation by creating incentives for people living on reservations to move away from their allotted land and into cities.

In some parts of the country, entire tribes collapsed as the federal government ordered tribal government to dissolve, and it became financially impossible for families to remain on their land. Although not entirely forced, this can only serve to accentuate the circumstances under which Odanah began moving after the flood of 1960.

Navigating Complexity

The line between voluntary migration and forced displacement from climate change can be difficult to determine. Much movement – and indeed most movement related to environmental factors – is not entirely forced or voluntary, but rather falls somewhere on a continuum between the two, with multiple factors contributing to whether a person moved, where they move, how. But as with the Odanah relocation, what happens when the reasons for residing in a climate catastrophe prone area were unfair to begin with?

One example is Newtok in Alaska, where erosion is forcing the primarily Yup’ik Native village to relocate. As temperatures increase, the frozen permafrost underneath the village, which was established as a consequence for forced settlement, is thawing resulting in about 70 feet of land erosion each year. Since 1994, the Newtok community has been desperately seeking out funding to aid in their relocation to a plot of land 9 miles away. And more than twenty years later, money still remains the largest barrier in their endeavours.

As of March, the village secured more than $15 million USD in funding to begin relocating households to safer ground inland. This amount, however, is still just a fraction of what is required to relocate the entire village. According to the Army Corps of Engineers, the total cost of relocation could be as much as $130 million USD.

If there is not enough money to relocate the village collectively, Newtok residents could be forced to scatter, putting their community, culture, the Yup’ik language and identity at risk.

Without clear responsibilities and allocated funds to deal with managed retreat, vulnerable communities will continue to struggle to find permanent solutions to their predicament. Although FEMA has pushed for communities to plan for climate change, the federal government currently doesn’t have policies to deal with issues like relocation. As more communities face similar problems, a legal solution could be the only way to stay above water. And, as Odanah showed, managed retreat can turn out a success.

Cover photo by Commonist/Wikimedia Commons (CC BY-SA 3.0): The water tower in Odanah, Wisconsin.
New study finds legal sector demand for climate services very likely to increase in near future

New study finds legal sector demand for climate services very likely to increase in near future

By Richard Bater

Law, and therefore legal services, will be indispensable to achieving a just transition to a low-carbon economy, as well as to ensuring that societies are resilient in the face of future climate-related risk. This renders the legal profession an essential actor, be it through crafting clear and robust legislation, ensuring compliance, or upholding constitutional rights.

New research by Acclimatise, that examines the legal sector’s demand for climate services, finds that whilst climate change has ranked very low on the sector’s agenda this has started to change during the last three years. This is partly attributable to new legislation – which increased 20-fold during the 20 years to 2017 to reach 1,200 laws – but is also due to the increasing recognition on the part of lawyers and their clients that climate change means material risk.  In future, individuals and organisations will increasingly solicit advice as to what their legal duties are vis-à-vis climate change in respect of existing (and forthcoming) laws and established legal doctrines, as well as to be shielded from climate-related litigation.

Climate change is cross-cutting and raises implications – to a greater or lesser degree – across the majority of areas of legal practice, from professional negligence, to product defect, to directors’ duties, to climate disclosure, to constitutional rights. Legal risks can arise, for example, where climate change results in organisations breaching existing compliance requirements (e.g. water quality standards).  With the reinterpretation of common law doctrines in light of climate change, failure to become adequately informed about – and manage – climate-related risk could lead directors to be in breach of directors’ duties. As Jason Betts, Partner at Herbert Smith Freehills, has observed, in order to mitigate litigation risk “companies across all sectors must ensure that the impact of climate change events – both those they may contribute to and those that might affect their businesses and profitability – are risk-assessed, costed and, where material, disclosed to the market.”

Emerging disclosure arrangements – such as those promoted by the Taskforce on Climate-Related Financial Disclosures (TCFD) – are putting climate-related risk on the boardroom agenda. By rendering climate risk a material issue that must be dealt with by organisations today, such initiatives help to bring organisational decision making on climate change into line with the timeframes within which action must be taken to limit the magnitude and risks of climate change.

Climate change adaptation, from a legal perspective, requires a highly collaborative approach; the bringing together of a range of legal skills and expertise.

– Mark Baker-Jones

Accurately disclosing climate-related risks – and proving disclosure breaches – is just one area that can require multi-disciplinary expertise, spanning climate and legal services. Indeed, as reflected by Mark Baker-Jones, more broadly “climate change adaptation, from a legal perspective, requires a highly collaborative approach; the bringing together of a range of legal skills and expertise.”  Underdevelopment of tailored climate services partly explains the hesitation of regulators to impose more stringent requirements: if regulatory provisions step too far beyond what is able to be reliably measured in a comparable way, regulators cannot be certain that regulations are being complied with and producing the change intended. Improving the robustness of harmonised and comparable climate risk metrics is essential. As Baker-Jones has also stated, “what is missing is the translation of that [climate] knowledge into practical advice and guidelines that those leading the private sector can understand and apply…Whether it is redefining the point at which liability is incurred or introducing new levels of liability where before there appeared to be none, climate change law is driving a reinterpretation of some fundamental principles of duty and responsibility.”

The study identifies several key ways in which climate services can better address the sector’s needs:

  • Develop the science of climate attribution, impact modelling, and integrated socio-economic climate impact models (including counter-factual scenario modelling);
  • Rigour, resolution, and comparability are the three highest ranking criteria of climate-related information;
  • Increase dialogue between legal services, climate scientists, and climate services;
  • Communicate climate knowledge in ways intelligible to legal audiences, including how findings correspond with legal standards of proof;
  • Develop a quality assurance regime for climate services providers.

Where climate science is evolving rapidly, there needs to be more accessible regularly-updated, spatially-nuanced communication of the state of climate (attribution) science that summarises the ‘consensus’ view to legal and other audiences in mind. A thorough record of this could become a touchstone for what is considered – and what was considered – ‘reasonably foreseeable’ at a given point in time, both guiding decision making in the present and enabling future accountability for harm.

The case study was led by Acclimatise under the MArket Research for a Climate Services Observatory (MARCO) programme. MARCO, a 2-year project coordinated by European Climate-KIC, hopes that research such as this will help to remove the barriers to the growth of the climate services industry across Europe.

Download the full case study “Legal Services” by clicking here.

Please check the MARCO website for the full suite of MARCO case studies.

The MARCO project has received funding from the European Union’s Horizon 2020 Research and Innovation Program under Grant Agreement 730272.

Researchers highlight importance of public health in climate litigation

Researchers highlight importance of public health in climate litigation

By Elisa Jiménez Alonso

Climate litigation offers citizens a way to force governments and companies to cut carbon emissions or even pay for damages caused by climate change impacts. It is, however, a relatively new frontier in the world of climate action and much research is currently going into it. In this context, researchers from George Washington University analysed the role of health concerns in climate litigation and found health may be critical for successful climate lawsuits.

Health impacts, according to the researchers, could be considered as a damage and be a more powerful argument than, say, property damages. On the one hand, burning fossil fuels can increase instances of respiratory diseases like asthma and bronchitis, and also heart diseases. On the other hand, climate change caused by the burning of fossil fuels can lead to hotter temperatures which will worsen air pollution, increase the risk of heat strokes, dehydration, and death, and widen the areas in which mosquitoes spread diseases like dengue and West Nile virus.

Of 900 court decisions related to climate change and coal-fired power plants and analysed by the researchers, only 16 percent considered health. In interviews with scientists, advocates, and legal experts, the team found that while litigants who bring up health in climate lawsuits are not more likely to win them than those who don’t, health considerations can strengthen climate lawsuits in two ways:

  1. Plaintiffs might gain standing if they are able to demonstrate that their health deteriorated as a result of, in this case, air pollution. Meaning, a connection between the defendant’s actions (polluting the air) and the consequences suffered by the plaintiff (respiratory disease) was demonstrated to the court.
  2. Lawsuits that argue around public health and have compelling human stories play well in court as they are easier to grasp than stories about future climate impacts and climate science.

Lead author Sabrina McCormick says, “many experts believe that climate change is the biggest threat to public health in the 21st century, and the courts have been and will continue to be a central avenue for the development of climate-related policy in the United States.”

This paper comes just a few months after ClientEarth released a report warning governments and business of increasing instances of litigation for failing to prevent foreseeable climate-related harm as event attribution studies become more effective at quantifying the link between greenhouse gas emissions and extreme weather events. The combination of attribution science and arguments for public health could prove to be a powerful combination in front of courts which are seeing rapidly increasing numbers of climate lawsuits.

Access Sabrina McCormick, Samuel J. Simmens, Robert Glicksman, LeRoy Paddock, Daniel Kim, Brittany Whited, “The Role of Health in Climate Litigation”, American Journal of Public Health 108, no. S2 (April 1, 2018): pp. S104-S108.

Cover photo by Anna Sullivan on Unsplash
Developments in attribution science may lead to more climate change litigation

Developments in attribution science may lead to more climate change litigation

By Georgina Wade 

Scientific advancements in extreme weather event attribution could have legal implications for decision-makers with a duty to manage foreseeable harm and plan for the future.  

A report by ClientEarth warns that governments and business may be increasingly at risk of litigation for failing to prevent foreseeable climate-related harm to people and infrastructure. As cutting-edge climate science improves, event attribution studies are now able to quantify the link between human activity and extreme weather events.  

For many legal systems, having this ability to foresee damage is a key requirement in establishing a duty of care. And with shifts in climate politics and the absence of enforceable commitments from government, courts are playing an increasing role in apportioning responsibility for loss and damage resulting from climate change 

Lead authors of the report Sophie Marjanac, Lindene Patton, and James Thornton believe this breakthrough will only galvanise future climate change litigation 

“We expect that evidence from attribution science will catalyse future climate change litigation,” they said. “Claims are likely to arise when actors fail to share or disclose relevant knowledge or fail to take adaptation actions that would have protected those to who they owed a duty of care.   

2017 global trends point to over 1,200 climate change or climate change-relevant laws worldwide, a twentyfold increase over 20 years. Although a vast majority of these cases are within the United States, a United Nations report notes that legal action is starting to emanate from all corners of the world.  

And some of these cases have been pivotal in enacting climate change mitigation and adaptation efforts, such as a 2007 case where various states and cities demanded the US Environmental Protection Agency regulate carbon dioxide and other greenhouse gas emissions. In separate cases, the Urgenda Foundation joined with several hundred Dutch citizens to sue the government over its decision to lower its greenhouse gas reduction target while a court in Pakistan ruled in favour of a farmer who sued the national government for failure to carry out the 2012 National Climate Policy and Framework 

Executive Director of the Sabin Center for Climate Change Law at Columbia Michael Burger believes legal action will prove significant in pushing the countries closer to their agreed target of avoiding global warming of 2 degrees Celsius or more.  

“Legal action will be used to stave off the worst aspects of climate change,” he said. “Litigation will be absolutely essential in instigating action in the US and elsewhere, and it will continue to do so.”

Cover photo by Waugsberg/Wikimedia Commons (CC BY-SA 3.0): Group of statues by Balthasar Schmitt (1858–1942) comprising Justitia flanked by Innocence (left) and Vice (right) on top of the southern gable of the Palace of Justice, Munich, Germany.
The Great Flood of Baton Rouge: One year later

The Great Flood of Baton Rouge: One year later

By Gracie Pearsall

In August of 2016, the worst rainstorm in state history hit Louisiana and devastated Baton Rouge. The locals have since dubbed the event the “Great Flood” – an apt name as the rainstorm caused flooding of almost biblical proportions. Inadequate support from the Federal Government exacerbated the immense destruction. The American Red Cross declared this rainstorm the worst natural disaster since Sandy. Yet, while the government and fellow Americans gave the victims of Sandy an outpouring of support, the victims of the Great Flood experienced mostly neglect and abandonment.

Now, one year has passed and the victims of the Great Flood are still trying to rebuild their homes and regain a sense of normalcy, all while the federal government continues to ignore the victims’ needs. This negligence disproportionally affects Baton Rouge’s most disadvantaged, who rely on relief to rebuild. In the face of a changing climate, in which such extreme events become more frequent, negligence will disproportionally the most disadvantaged.

The Aftermath

From August 11th through August 14th of 2016 an unnamed storm dumped 7.1 trillion gallons of water onto the greater Baton Rouge area. The subsequent flooding killed 13 people, damaged 100,000 homes, and displaced thousands of people. In a span of three days, Baton Rouge received two feet of rain, which pushed river levels to record highs. The rainfall alone would have been enough to inundate the area, but once the rivers overflowed, flash floods tore through the region.

The Federal Government administers disaster relief on an ad hoc basis, and provides funds to states and localities after disaster strikes. The victims use the money to rebuild homes, business, and infrastructure. The damages from the Great Flood tallied up to $10.3 billion dollars, and the state needed $3.7 billion of federal funding to administer relief. However, congress only provided Louisiana with $1.7 billion – only 13 cents per every dollar of damage.

Vulnerable populations

Low-income households often lack the resources to quickly rebound from natural disasters. Yet, vulnerable populations find themselves concentrated in undesirable areas with high natural disaster risks because the cost of living is low. Such is the case in north Baton Rouge, the area that the Great Flood affected the most, and where one in four households lives in poverty. Institutionalised neglect has plagued North Baton Rouge. Abandoned properties and streets lined with ditches instead of sidewalks expose rampant urban decay in this area, due to lack of investment, maintenance and resources. Recent closures of stores and two hospitals further exemplify the persistent decline of resources in north Baton Rouge.

When the flood hit, neither the infrastructure nor residents of north Baton Rouge were prepared. Many residents were dependent on the assistance from FEMA (Federal Emergency Management Agency), non-profits, and other agencies. The area was already severely lacking resources, and the inadequate relief punctuated the hardships. However, even when support fell short, the majority of survivors were determined to remain in the area and rebuild.

A year later, despite this community’s resilient spirit, north Baton Rouge still displays signs of neglect. Thousands of people are still displaced from their homes. Many are still living with their relatives or staying in FEMA trailers in front of their gutted homes. Repairs have been slow and many homes still have not even begun the rebuilding process

But in the wake of the flood, the most devastating impact has been the emotional and psychological toll on the survivors. The emotional and mental health consequences are not as visible as physical destruction, but nonetheless have devastated Baton Rouge. The victims not only had to deal with losing everything, but also the feeling of being abandoned in a time of need. A state mental health support agency has reported that feelings of hopelessness, despair, cases of depression, and problems eating and sleeping have significantly increased post-flood. Many survivors report feelings of anxiety and fear every time it rains because they are reminded of the flood. Police report that since the flood, incidents of domestic violence and alcohol abuse have increased as well.

Emotional distress is virtually universal after a natural disaster, and mental health support is a crucial aspect of rehabilitation. Louisiana Spirit is a state agency that provides counselling and helps people recover in the wake of natural disasters. However, the Trump administration recently denied a state request that would have authorised much-needed funding for Louisiana Spirit beyond August.

Links to Climate Change

By any measure, this storm was extreme. While it is difficult to attribute a single event to climate change, research has shown that the Great Flood is linked to the changing climate. Climate change did not cause the Great Flood, but it altered background climatic conditions to be more favourable to extreme precipitation events. The current strategy for handling natural disasters is recovery-focused. However, as extreme events become more frequent and affects more people, response plans should be focused more on preparedness and resiliency.

Nevertheless, in spite of the insufficient governmental response to this catastrophe, the people of Baton Rouge are determined to rebuild their lives and ensure that their community is prepared for the next flood. Hundreds of north Baton Rouge Citizens filed a class action lawsuit against the city, claiming flooding was amplified due to drainage valves that were closed for maintenance and were never re-opened. The citizens recognise the value that preparedness has in the face on the coming storms. Their resiliency should be mimicked by resilient policy, such as elevation standards in flood-prone areas and early flood warning systems. The situation in Baton Rouge exposes how the current disaster relief administration falls short, thus leaving vulnerable populations to endure the changing climate’s furore alone.

Cover photo via Wikimedia Commons (CC BY-SA 3.0): The Horace Wilkinson Bridge in Baton Rouge.
Deploying the science of extreme weather attribution in the courts

Deploying the science of extreme weather attribution in the courts

By Sophie Marjanac and Lindene Patton, lawyers at ClientEarth in the UK and Earth & Water Law in the US, respectively.

For decades, proving the link between human greenhouse gas emissions and their impact on extreme weather events was thought to be near impossible. Now, scientific advancements in extreme weather event attribution are turning this assumption on its head.

At the same time, courts around the world are increasingly being asked to consider questions of liability arising from a relationship between the loss and damage caused by an extreme weather event and climate change.

From a legal view, the information that attribution studies provide about the increased characteristics of extreme weather events – such as heatwaves, droughts or storms – is crucial. Having the ability to foresee damage is a key requirement in establishing a duty of care in many legal systems.

This breakthrough will galvanise future climate change litigation. Cases are likely to involve local government agencies, professionals or companies that own or manage public and private infrastructure and have a duty of care to manage climate-related risks.

And this fusion of science and the law could spur action from governments and businesses to mitigate greenhouse gas emissions, helping to limit the extent of climate change in future.

Rapidly evolving scientific field

The science of determining the extent to which human-caused climate change has affected the characteristics of an extreme weather event is known as “event attribution”.

Scientists use a methodology to compare observations and records from the “real world” with the “counterfactual world” – a modelled simulation with human-caused forcings, such as  greenhouse gases and aerosols, removed.

Since the first attribution study on the 2003 European heatwave, scientists have published more than 140 studies looking at weather events around the world.

The strength of attribution science is based on three “pillars”: the quality of observed records; the ability of models to simulate climate events; and the understanding of physical processes that drive climate events and how these are being affected by climate change.

To date, confidence in studies of extreme heat and cold episodes has been the strongest – though scientists are increasingly able to differentiate between natural and human-caused influences on rainfall extremes and storms as well.

Significant uncertainties do remain, however, and in an inherently chaotic weather system it is technically impossible to state that a specific extreme event would “never” have occurred without human influence. Therefore, scientists reject simplistic statements such as “this event was caused by climate change” and instead express findings in terms of changing risk.

For example, a recent study in Australia found that “in the past, a summer as hot as 2016–17 was a roughly 1-in-500-year event”. It continued: “Today, climate change has increased the odds to roughly 1-in-50 years – a tenfold increase in frequency. In the future, a summer as hot as this past summer in New South Wales is likely to happen roughly once every five years”.

Implications for the law  

The fact that the findings of event attribution studies are expressed probabilistically does not diminish the usefulness of this evidence for the law or liability. The law has shown flexibility in assessing harm resulting from “negligence” (a type of legal wrong) where harm can only be proven using probabilistic methods.

For example, courts in the UK have accepted causation for civil cases relating to occupational exposure to toxic chemicals when the science has shown the risk of an event occurring has been increased by a 2:1 chance. This is known as the “doubling of the risk” test. Similar tests have been adopted as part of litigation in the US.

Attribution science is not only beginning to link emissions from human activities to specific physical events happening today, it is also producing clear warnings and evidence about the risks of extreme climate events in the future.

What does this mean for governments and business?

With these scientific breakthroughs, governments and businesses may find that the bar is raised with respect to the expectations of the public and the law.

Some nation states have legal duties to protect the rights of citizens. As our understanding of the future risk from climate change becomes more certain, governments may have corresponding legal duties to adapt physical infrastructure and disaster management plans to protect people and the environment.

Specifically, government or private bodies that own and manage critical public infrastructure – such as ports, roads, airports or even public housing – should be aware of, and adapt to, the expected exposures projected by the best available event attribution science. This is necessary to continue to achieve necessary protective and reliability standards – and maintain related economic stability. Infrastructure may need to be re-designed to ensure it can withstand future climate-related risks, such as heatwaves and floods.

In the US, claims against governments for failing to adapt to climate change could be brought under existing statutory obligations, however, the process is complex. Just as litigation arose after Hurricane Katrina, questions will be asked in the wake of Hurricane Harvey regarding appropriate planning, management and responses to flood risk in Houston.

Interestingly, the UK Climate Change Act allows the Secretary of State to request adaptation plans from public authorities that show their preparation and planning for the impacts of climate change.

The same liability risk applies to companies, too. A business that designs, constructs or manages public assets also faces future climate-related risk. If architects, engineers or builders use outdated building standards, or if codes are not updated to take into account exposures projected by advances in climate science, these companies and professionals may expose themselves to negligence claims. As has been seen time and again in the US in all manner of litigation, mere compliance with a statute or procurement rule or requirement does not necessarily satisfy professional duty obligations.

More frequent and severe weather events also physically threaten private assets and business revenue and related tax revenues, whether that includes a loss of productivity due to periods of closure, or higher energy costs. Businesses, just like governments, must assess and manage foreseeable climate-related risks.

We expect that attribution science will provide crucial evidence that will help courts determine liability for climate change related harm. But that liability may emerge first from traditional common law negligence causes of action, applied to professionals and parties with unique knowledge and/or duties, rather than from regulatory compliance actions.

Governments and businesses can no longer ignore the risk of extreme events or write them off as “Acts of God”. Instead, quantifying the impact that humans have on climate events could help us mitigate climate risk and adapt for a stable future.

This article originally appeared on Carbon Brief and is shared under a Creative Commons license.
Cover photo by Edward Lich/Pixabay (public domain).