Legal Resources for Climate Change Adaptation

Legal solutions are needed to ensure that government decision-makers, engineers, architects, planners, and other stakeholders account for known climate risks when making decisions about the built and natural environment. The Sabin Center has compiled this database of legal resources for adaptation, which includes information about specific legal provisions that could be interpreted as requiring consideration of climate-related risks, articles discussing the nature of legal obligations to adapt, and resources to facilitate adaptation planning efforts undertaken by government and private actors. This database is intended as a complement to our Handbook of Adaptation Advocacy Strategies.

For an analysis of the broad range of legal issues involved, see Michael B. Gerrard & Katrina F. Kuh, eds., THE LAW OF ADAPTATION TO CLIMATE CHANGE: U.S. AND INTERNATIONAL ASPECTS (American Bar Association 2012).

These resources are organized into the following categories:

Federal Statutory and Regulatory Violations

Pollution Control Statutes

Many of the federal pollution control statutes contain requirements for regulated entities to prepare for and avoid certain types of environmental harms, such as accidental releases of wastewater or hazardous materials during storms. The effects of climate change can exacerbate the risk of these environmental harms occurring. These statutory provisions (and accompanying regulations and guidelines) can therefore be interpreted as requiring regulated entities to account for the effects of climate change when developing strategies to reduce the risk of such harms. Key provisions include:

  • Clean Air Act (CAA): Section 112(r) requires certain facilities where hazardous chemicals are stored to develop accidental release prevention and risk management plans, which account for risks related to storms and other environmental phenomena. Learn more >>
  • Resource Conservation and Recovery Act (RCRA): Facilities covered by RCRA permits must develop emergency contingency plans which are “designed to minimize hazards to human health or the environment from fires explosions, or any unplanned or sudden or non-sudden release of hazardous waste or hazardous constituents to air, soil, or surface water.” (40 C.F.R. 265.52). The RCRA regulations also require permit applicants to include, in the permit application, “A description of procedures, structures, or equipment used at the facility to… (ii) Prevent runoff from hazardous waste handling areas to other areas of the facility or environment, or to prevent flooding (for example, berms, dikes, trenches); (iii) Prevent contamination of water supplies; [and] (iv) Mitigate effects of equipment failure and power outages.” (40 C.F.R. 270.14). Permit applications must also specify whether the facility is located in a 100-yr flood plain, and if so, must describe how the facility will be design to withstand flooding and avoid accidental releases (40 C.F.R. 270.14). Read more>>

Further reading:

Occupational Safety and Health Act (OSHA)

OSHA and its implementing regulations require employers to provide their employees with a place of employment that “is free from recognized hazards that are causing or likely to cause death or serious harm to employees.” (OSHA Section 5) Climate change could affect the nature and severity of “recognized hazards” that could affect employees, such as exposure to heat stress. Some aspects of OSHA which could be used to compel employees to prepare for the effects of climate change include:

  • Provisions related to heat stress: The federal government has not established legally binding standards for avoiding heat stress (such as maximum working temperatures), but 25 states have adopted OHSA-approved plans for compliance with and enforcement of heat illness prevention plans. Read more>>
  • Provisions requiring employers to maintain and execute emergency plans:  Employers are generally required to maintain emergency plans that include an evacuation plan in case of hazardous events. These plans “should address emergencies that the employer may reasonably expect in the workplace. Examples are: fire… hurricanes; tornadoes… floods.” (29 C.F.R. 1910.38). Because climate change is linked to increased likelihood of severe weather events, employers should “reasonably expect” and therefore be prepared for a variety of climate-change related weather hazards. Employers who operate marine terminals are also required to have emergency action plans to “ensure employee safety from fire and other emergencies.” (29 C.F.R. 1917.30(a)(1)).
  • Provisions Requiring Agricultural Establishments to Maintain Environmental Controls:  Agricultural operations that employ field hands are required to maintain environmental controls on their premises. For example, employers are required to provide potable water to employees that “shall be suitably cool and in sufficient amounts, taking into account the air temperature, humidity and the nature of the work performed, to meet the needs of all employees.” (29 C.F.R. 1928.110(c)(1)(ii)). Increased temperature and humidity due to climate change could therefore implicate a higher degree or responsibility from employers in providing adequate potable water to their employees.
  • Provisions Requiring Employers to Maintain Environmental Controls in Temporary Labor Camps: Employers who maintain temporary labor camps are required to ensure that the camps are adequately drained: “[the camps] shall not be subject to periodic flooding, nor located within 200 feet of swamps, pools, sink holes, or other surface collections of water unless such quiescent water surfaces can be subjected to mosquito control measures. The camp shall be located so the drainage from and through the camp will not endanger any domestic or public water supply. All sites shall be graded, ditched, and rendered free from depressions in which water may become a nuisance.” (29 C.F.R. 1910.142(a)(1)).

Americans with Disabilities Act (ADA)

The ADA prohibits both public and private actors from discriminating against persons with disabilities (PWDs) in the provision of services, programs, and activities. (ADA Section 202). In a recent law review article, Adrian Weibgen explains how this requirement applies in the context of emergency planning, and discusses several cases that collectively support the proposition that  “the emergency response plans of public agencies and private entities must specifically account for the needs of PWDs.”

A DOJ Guidance Document confirms that the ADA requires local governments to make emergency response accessible to PWDs. A separate DOJ “ADA Best Practices Tool Kit for State and Local Governments” walks through the basic applicability of the ADA to emergency management, and confirms that all requirements for state and local governments apply to emergency programs and services provided by third parties.

Climate change will affect the nature and intensity of natural hazards such as storms, floods, and heat waves. PWDs are often among the most vulnerable to these types of hazards. Public and private actors will need to account for the needs of PWDs when developing and implementing response plans for these hazards.

Rules Governing Federal Agency Activities

United States Army Corps of Engineers (USACE) 

USACE has issued several guidance documents on how to account for sea level rise and hydrologic changes caused by climate change in engineering projects undertaken by the agency, including:

USACE also provides its staff with a tool to assess vulnerability of non-developed natural coastlines or beach protection projects: Beachfx.

Environmental Impact Assessment

The National Environmental Policy Act (NEPA) requires federal agencies to evaluate the environmental effects of major federal actions. Conducting this analysis typically requires consideration of the future conditions in the area where the project will be located — and in many instances, climate change may affect those future conditions. Recognizing this, the Council on Environmental Quality (CEQ) has issued guidance instructing agencies to account for the effects of climate change on actions, as well as the greenhouse gas emissions of actions, when conducting NEPA reviews. Many states have enacted statutes similar to NEPA

The Sabin Center has published two model protocols for evaluating the effects of climate change on NEPA reviews, accompanied by reports describing the underpinning legal requirements and the ways in which agencies are currently conducting this type of analysis. More info >>

Handbook Chapter: NEPA, Jennifer Klein and Ethan Strell (March 2015)

Natural Resource Planning

Many of the federal statutes governing the management of federal lands and natural resources require agencies to undertake comprehensive planning processes to ensure that these lands and resources are used in a sustainable fashion. The long-term sustainable management of resources frequently requires consideration of how climate change may affect the local climatic conditions, hydrology, wildlife, and other environmental attributes. The planning mandates can therefore be considered as requiring some consideration of climate change.

Common Law Doctrines

Tort Law

In some circumstances, tort law may provide a basis for holding government and private actors accountable for the failure to address known climate risks. Take, for example, a government agency that does not account for risks such as sea level rise and more extreme rainfall events when constructing a new wastewater treatment plant. The agency could be held liable for negligence if the plant is flooded and this results in the discharge of wastewater to adjacent properties. However, the doctrine of sovereign immunity will pose a substantial barrier to litigation against government actors in many jurisdictions.

Further reading:

Takings

Takings claims could serve as a barrier to adaptation, particularly for municipalities that wish to implement managed retreat strategies by regulating development within or terminating services to areas that will be inundated by sea level rise in the coming years. However, it is also possible that takings claims could serve as an incentive for adaptation, since a municipality that does not take adequate measures to protect private property from the harmful impacts of climate change could potentially be held liable for takings.

Further reading:

Public Trust Doctrine

The Public Trust doctrine could provide a basis for compelling state and local governments to undertake adaptation measures needed to protect and preserve public trust resources, such as water resources and coastlines, from the harmful impacts of climate change. The doctrine could also provide a legal basis to support adaptation activities that involve the curtailment of private property interests (e.g., managed retreat programs and water conservation programs).

Further reading:

Local Land Use and Planning

Local governments are at the forefront of local adaptation efforts, and can account for climate change-related risks when developing local land use and transportation plans and accompanying rules. In some jurisdictions, existing laws that govern local land use and planning activities could also give rise to legal action aimed at compelling local governments to account for climate change-related risks in these activities.

Key resources:

Further reading:

Building Codes

Building codes are another important component of the legal toolkit for climate change adaptation. These codes can be revised to make buildings more resilient to heat waves, flooding, sea level rise, and other climate change impacts.

Further Reading:

Federal Flood Mapping, Flood Insurance, and Disaster Assistance

The Federal Emergency Management Authority (FEMA) develops flood maps and provides federal flood insurance for properties (with rates that are connected to risks identified on the flood maps). FEMA has begun updating its flood maps for New York City to account for sea level rise and future flood risk. However, most aspects of the federal flood mapping and insurance program have not been updated to account for the effects of climate change.

The federal government has taken some steps to ensure that federal agencies prepare for the effects of climate change on flood risk. Most notably, Executive Order 13690 established a Federal Food Risk Management Standard (FFRMS), a “flexible framework” that would “ensure that agencies expand management from current base flood level to a higher vertical elevation and corresponding horizontal floodplain to address current and future flood risk.” FEMA has developed draft guidelines for implementing the FFRMS which discuss how climate change should be accounted for when determining flood risk.

FEMA also provides emergency management and disaster assistance services. It has recognized that climate change increases disaster risk, and has taken several steps to update its emergency management and disaster assistance programs to address the effects of climate change. For example, FEMA updated the guidance for State Hazard Mitigation Plans to instruct states to account for climate change when developing state plans. FEMA also updated its Hazard Mitigation Assistance program by incorporating sea level rise into the cost-benefit tool for hazard mitigation projects. However, some aspects of these programs continue to impede effective adaptation: for example, FEMA provides grants to rebuild buildings that are destroyed by disaster in the exact same location and fashion as before the disaster.

Key documents:

Further reading:

Public Utility Commission Actions

Utility companies and public utility commissions will need to prepare for the effects of climate change on electricity, water, and other utilities. Stakeholders can work with public utility commissions to encourage and compel adaptation efforts in these sectors. For example, in the aftermath of Superstorm Sandy, the Sabin Center spearheaded an effort to overhaul New York City’s electricity, gas, and steam distribution grids so that they would be better adapted to a changed and changing climate. That effort yielded a settlement with Consolidated Edison (Con Edison), approved by the New York Public Service Commission in February 2014, and a multi-billion-dollar adaptation plan. The Sabin Center is now engaged in an ongoing effort to ensure that Con Edison fulfills its obligations under that settlement.

Key documents:

Contractual, Fiduciary and Professional Obligations

In some situations, the disclosure of climate change-related risks may fall within the contractual, fiduciary or professional obligations of a company or individual. For example, companies that manage assets that may be adversely affected by climate change should report these climate change-related risks to shareholders and regulators. The disclosure of climate change-related risks may also be required in the context of a transition that involves assets that may be vulnerable to the effects of climate change, such as coastal properties. Finally, engineers, architects, real estate agents, and other professionals may have a professional obligation to disclose climate change-related risks to their clients.

Risk disclosures, lender due diligence, expert advice

Professional licensing boards and practices

Insurance and (Re)insurance

Insurance will play an particularly important role in managing financial risks related to climate change. Insurance companies can also play an important role in persuading and compelling government and private actors to account for climate change-related risks and to not behave negligently in the context of those risks. For example, insurance companies can withhold insurance payments for climate change-related damages that occur as a result of the insuree’s failure to adequately prepare for those risks. Insurance companies can also bring lawsuits to recuperate the costs of insurance payments from third parties who are responsible for those costs. This means that an insurance company could sue a municipality that fails to prepare for the effects of climate change on public infrastructure, such as a stormwater management system, and this failure results in property damage for the insurance company’s policyholders.

Further reading: