The year is 2030. For the past two decades, your local government has buried its head in the sand and pretended that flooding is not getting worse.
Meanwhile, the advice from federal and scientific sources has become louder and louder: Climate change is raising flood heights to unprecedented levels as a result of more intense storm patterns, and the old maps are no longer accurate.
Finally, the day comes when your house is under water even though you have been begging City Hall to do something. Can you sue on the grounds that planners and public officials should have known this was coming because of climate change?
Well, a lot depends on circumstances, and environmental law is seldom a simple thing. But the answer, according to Jon Kusler, a veteran in this field, may increasingly be yes.
The days when government can hide behind an “act of God” defense, in the face of a growing mountain of scientific evidence and technical capacity to provide warnings of probable impacts, are waning, Kusler says. In a new paper produced with funding support from the McKnight Foundation and in collaboration with the Association of State Wetland Managers, Kusler outlines five reasons why suits related to climate change impacts may become increasingly successful:
- Various hazards caused in whole or in part by climate change, including floods and landslides, are increasingly “foreseeable” and “predictable.” Note that predictability does not mean we know when something will happen, but that it is capable of happening, which may prove more than enough to allege negligence when that evidence is ignored.
- Suits that are already common concerning flood hazards may be expanded to include climate considerations.
- Improved techniques for reducing hazard losses create higher standards for “reasonable conduct,” leaving less room for indifference and neglect. In short, today’s standards will not necessarily be tomorrow’s standards. With better technology, we can expect better planning.
- Advances in modeling of natural hazards will help establish causation, reasonableness of conduct, and damages, making claims related to climate change easier to prove.
- Courts are narrowing the viability of defenses like “act of God,” “contributory negligence,” and “assumption of risk.” The result is increased governmental liability.
If it sounds as if Kusler is telling local, state, and federal officials to up their game in response to the challenges of climate change, well, that is a reasonable conclusion.
Science and technology inevitably narrow the scope for saying, “We didn’t know.” Granted, such legal changes can take time, but precedent builds upon precedent, and it is undeniable that the credible warnings are out there.
As Kusler notes at the outset, the Intergovernmental Panel on Climate Change in 2013 predicted sea level rise between 0.6 and 2 feet by the end of the century, and other estimates have been higher. Those levels will vary with location, but the predictions are likely to become more precise as the science improves. The excuses for inaction will become increasingly untenable.
“Government Liability and Climate Change: Selected Issues for Wetland and Floodplain Managers” is now available online as a PDF. Planners involved in natural hazard issues should take time to read this shot across the legal bow.
About the Author
James C. Schwab, FAICP, is manager of APA’s Hazards Planning Center.
Top image: Coastal flooding on Cape Cod, Massachusetts, in the wake of the March 2010 nor'easter (or St. Patrick's Day nor'easter). This slow-moving storm caused extensive coastal flooding and beach erosion in the wake of 70 mph winds and more than 10 inches of rain that fell on New England from March 12-16, 2010. Photo by Flickr user Putneypics (CC BY-SA 2.0).