Legal Liability Could Catalyze Action on Climate Change

By Deanna Moran and Elena Mihaly

Deanna Moran is the Director of Environmental Planning at the Conservation Law Foundation where her work focuses on identifying and implementing solutions to a variety of environmental problems that lie at the intersection of planning, development, and regulation. On twitter @demoran18.

Elena Mihaly is a Staff Attorney at the Conservation Law Foundation where her work focuses on developing and implementing law and policy solutions to protect water quality and enhance community climate preparedness. On twitter @ElenaMihaly

Apr 4, 2019 | Governance, Society | 0 comments

Extreme weather events, like hurricanes and droughts, cost the U.S. billions of dollars every year. The magnitude and frequency of these events is only intensifying in the face of climate change. The 2017 hurricane season was one of the most expensive in history, causing more than $200 billion in damage nationwide.

As climate disruption escalates and wreaks more havoc, so too do the number and type of legal claims seeking compensation for harm. With increasingly sophisticated weather modeling, state and federal courts are seeing an uptick in the number of cases alleging public entities (like a city or a water reclamation district) and private entities (like engineers and architects) negligently failed to prepare for known climate risks. This increased legal liability could become an important lever in compelling action on climate change.

 

Static Decision Making Frameworks Exacerbate Climate Risk

Public and private decision makers are starting to take notice of the increasing financial and safety risks associated with climate change. In 2017, the credit rating agency Moody’s Corporation warned cities that climate change would be incorporated into its credit ratings for state and local bonds and that failure to address climate-related risks could result in a downgrade. Also in 2017, the global Task Force on Climate-related Financial Disclosures developed a recommended set of voluntary climate-related financial disclosures to assist investors, lenders, and insurance underwriters in understanding material risks posed by climate change.

But these warnings and voluntary recommendations have not resulted in the significant adoption of adaptation practices necessary to prepare for the known impacts of climate change. Rather, the majority of our regulatory, planning, and land use decisions are still based on backward-looking climate data and outdated science. That is, few cities or states require consideration of forward-looking climate science in decisions around new development, siting of critical infrastructure and hazardous facilities, and other crucial planning choices.

This failure to incorporate readily available and increasingly sophisticated climate science (e.g., projected sea level rise or storm surge) into design and siting decisions unacceptably exacerbates the risks of climate change – particularly for socially and economically vulnerable populations that are most at risk.

 

Climate Change Related Litigation on the Rise

Litigation has long been recognized as a tool for compelling change in individual behaviors and industry standards, often serving as a stopgap where existing government regulations are inadequate. For example, litigation against tobacco companies helped raise awareness about the health impacts from smoking and played a part in spurring stricter regulations on cigarette manufacturing and marketing.

In the climate change context, we’re seeing an evolution of different legal strategies being employed to affect changed behavior and standards. Some plaintiffs have attempted to hold big greenhouse gas emitters like oil and gas companies accountable for contributing to the harms of climate change. But these suits have been largely unsuccessful to date. This is because causation is much more difficult to demonstrate than in the tobacco cases, and plaintiffs face potential preemption challenges due to the Environmental Protection Agency’s authority to regulate greenhouse gas emissions under the federal Clean Air Act.

Given these barriers, we are now seeing an increasing trend in cases seeking to hold public and private decision makers accountable for failing to adapt to foreseeable climate risks. For instance, in 2013, catastrophic flooding in Chicago resulted in millions of dollars in property damage. In 2014 Farmers Insurance Company filed a landmark class action lawsuit against the Water Reclamation District for greater Chicago for its failure to adequately prepare the city’s stormwater infrastructure for foreseeable extreme heavy rains due to climate change.

Legal Risks for Design Professionals

When structural problems in buildings or other infrastructure cause harm, impacted parties often seek compensation and damages from the design professionals involved in designing and building the project. Climate change impacts, such as high wind speeds and heavy snow loads on roofs, are all elements that design professionals have had to factor in to design and construction, but the difference is that the weather of the past is no longer a predictor of the future. Wind speeds are increasing, and storms are dropping more precipitation on roofs.  And reasonable design professionals are expected to incorporate these updated realties into their plans.

It’s important to note that this concept of holding parties responsible to prepare for foreseeable, albeit unprecedented, harms is not new. In a 1966 case, a building engineer was held liable for injury to a shopper when a supermarket’s concrete billboard toppled over during an unprecedented windstorm. The plaintiff claimed that despite being the highest wind speeds ever on record, based on scientific knowledge available at the time of design, the wind speed was foreseeable.

The court agreed. The idea that updated science and technology is a necessary consideration in liability claims still rings true – especially in light of increasingly sophisticated and available data on climate impacts.

More recently, after Hurricane Harvey, a group of Houston residents from a flooded neighborhood filed a negligence suit against an engineering firm for failure to design climate-ready flood protection controls. The residents claim the engineering firm failed to provide “ordinary care in the operation, design, and maintenance of its pump, levee, and drainage systems” as well as in the design of the management system. The plaintiffs claim that “ordinary care” would have meant designing and operating the stormwater management system to protect the community from foreseeable rainfall. Since the rain amounts that fell during Hurricane Harvey had occurred before, the complaint contends these conditions were foreseeable.

 

Legal Risks for Governments and Public Entities

This obligation to prepare for foreseeable harms also applies to government entities. Plaintiffs are increasingly looking for ways to hold governments legally liable for inadequate climate preparedness. Generally, these cases have taken one of two paths – either the suit is alleging a violation of a general duty or obligation under existing laws and regulations, or the suit is alleging the government is unlawfully “taking” private property without just compensation.

In the first instance, laws and regulations often impose obligations to take reasonable precautions to reduce risk, and these obligations can be heightened when considerations of public health or safety are at issue – such as in the case of facilities handling oil or hazardous substances. For example, a group of plaintiffs brought suit under the Americans with Disabilities Act (ADA) against the City of New York for discrimination in its failure to plan for their needs in large-scale disasters such as Hurricane Sandy. The plaintiffs argued that a lack of evacuation routes, wheelchair-accessible emergency shelters, and power outages left people with disabilities stranded in their homes and without vital medical equipment and prescription medications. After settling the case, the City of New York revised its emergency response plan to address the shortcomings identified by the plaintiffs.

In the second instance, an increasing number of claims are seeking to hold governments responsible for so-called “takings” of private property without due compensation. Federal, state, and municipal governments are constitutionally constrained from taking private property from an individual unless it does so for a public purpose and gives the owner reasonable compensation. In the climate context, a government might face this claim for both proactive action (like making the decision to release a levee knowing it will flood private property) and inaction (like failing to adequately maintain a coastal road that is the sole point of access to private property).

 

Litigation as a Lever for Climate Action

For the design professional community, there is an opportunity to pioneer in this space and use legal liability as leverage to be proactive in the face of climate impacts. First, the threat of liability can turn “the possible” into “the standard” as professionals seek codification of newly established best practices.

We have seen liability used as a lever to compel changes in industry behavior many times before. Consider safety standards for cars – at the end of the 20th century, litigation was the impetus for basic features like seatbelts and airbags that seem like no-brainers today.

Second, legal liability is a powerful tool for persuading clients to take climate adaptation more seriously. While many design professionals are not the ultimate decision makers on projects, they can serve an essential role in advocating for proactive and forward-looking practices.

Similarly, governments have an opportunity to proactively adopt adaptation strategies to protect themselves from so-called “failure to adapt” cases. In the face of increasingly foreseeable climate-related hazards, courts generally uphold restrictive regulations (like coastal protection no-build zones) when they are in the interest of protecting public health and safety, which most climate adaptation measures are. Governments should feel empowered, if not compelled, to adjust regulatory controls to address current and anticipated risks.

There is also increasing public awareness of the benefit of climate adaptation projects. Take, for example, a case from New Jersey post-Hurricane Sandy. A jury determined that the appropriate compensation for a property easement to build a berm was only one dollar after taking into consideration the benefits the project would provide to the property owner in the form of flood control.

While the fate of the recent slew of climate adaptation-related cases is yet to be decided, legal liability will be an increasingly important consideration for public and private decision makers. And it may even be the lever needed to catalyze urgent action on climate change.

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