Planning for Climate Change & Adaptation Locally

1. Planning for Climate Change & Adaptation Locally What You Don’t Plan for May Land You in Court Erin L. Deady, Esq., AICP, LEED AP

2. The Broad Brush-Stopping the Impacts • United Nations Framework Convention on Climate Change (UNFCCC) (1992) voluntary goal of reducing GHGEs from developed countries to 1990 levels by 2000 • Kyoto Protocol (1997) binding targets to reduce GHGEs 5.2% below 1990 levels by 2012 (U.S. non - “ratifier”) • Copenhagen Accord- 4% below 1990 levels by 2020 (not binding) • U.S. Response: • Attempts @ legislation, numerous in last 4 years • Supreme Court: EPA has authority to regulate CO2 • Reporting for sources emitting over 25,000 MTCO2e • No legally-binding cap on GHGEs

3. The Current State of the Courts • 527 total cases as of October 2012 (Source: Center for Climate Change Law, Columbia Law School) • 26% challenges against Federal actions (NEPA, CAA, etc.), 22% coal cases & Federal and state NEPAs (21%)/ESA 6% • Takings issues (as applied to adaptation strategies)- on the rise • Common law claims (4% but high profile) • Kivalina, (Dismissed in September 2012) -"But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law." • Comer, (Second time currently on appeal) • In re Canal Breaches Katrina-Overturned damages award • Vodanovich v. BOH Brothers- suit against the oil and gas industry for impacts to wetlands and coastal buffer areas, which compromise the levee system and result in ongoing harm.

4. The Subtle Legal Hook • ESA • NEPA • CAA • CWA • MMPA • FOIA/1st Amendment • Energy Policy Act • Global Climate Change Research Act • Corporate Reporting/Securities Disclosure • FTC • “Cap-and-trade”: regulation where GHGE’s are capped and allocated through the distribution of “allowances” representing a right to emit. • Regulate vehicle standards • Regulate activities (public and private) • Green & Energy Building/Codes (New Mexico case)

5. Florida Laws • Reduction of emissions to 2000 levels by 2017, to 1990 levels by 2025, and by 80% of 1990 levels by 2050. • Florida adopted the California motor vehicle emission standards (22% reduction in vehicle emissions by 2012 and a 30% reduction by 2016). • Building Efficiencies/Code, Chapter 553, F.S. increasing standards • HB 7123: Model Green Building Code (2007) • HB 697 (GHG reduction strategies in local government’s Comprehensive Plan) • HB 7135 (State and Local Government Buildings “greener”) • HB 7179 (Property Assessed Clean Energy including wind resistance) • HB 7117 (New Energy Bill- 2012) • 2013: Nada on climate/small on energy (CNG) • Florida does not have much specifically on climate change and sea level rise

6. Other Florida Authority • Local government Comprehensive Plans must based on “professionally accepted data” • Coastal high hazard area planning (old concept new rationale)& evacuation policies • Local mitigation strategies (required) • Conservation practices to improve air quality • Locating infrastructure to reduce the “energy” associated with its delivery

7. What are FL Governments Doing? Comprehensive Planning • New Comprehensive Plan Elements addressing Climate Change and Energy- Monroe and Broward counties and others Code provisions • Freeboard initiatives- City of Treasure Island with 2’ freeboard requirement above base elevation to improve FEMA’s Community Rating Score Capital Improvements Planning • Miami Beach Stormwater Master Plan (20 year updated of capital improvements) $200+ Million (use of “green alleys” and backflow preventers) Regional Initiatives • Space Coast Climate Change Initiative (est. 2007) • SE Regional Climate Compact (est. 2008-2009)

8. Case Study- Monroe County Sustainability and Climate Plan • Communications Strategy • Update Energy Baseline • Plan Development • Other Strategies: • Use of Rating Systems (possibly including CRS for FEMA) • Technical modeling and support

9. Basis for Concern

10. Two Approaches to Technical Modeling and Support • Community engagement: • Use of COAST Modeling approach and Catalysis Adaptation Partners • Scenario development by Community • Strategies developed to reduce risk • Economic analysis of strategies • County Assets (UGA SeaGrant): • Develop the “hard questions” for data collection • Use technical review team to run and customize models • Generate results and make recommendations for policy and capital planning

11. Resources for Decision-Making • Integrate final work products into decision-making (assumptions for the following): • Assumptions for infrastructure: Road improvement projects & stormwatermanagement • Help designate vulnerable areas, adaptation action areas or other similar concept • Land acquisition policies • Land development code provisions

12. Planning as an Approach to Flood Insurance Rates • Insurance will be a limiting factor in terms of where we live or “retreat” to- • Insurance companies will start to “consider” prospective factors in rates such as sea level rise- • Communities may be “forced” to implement mitigation and adaptation strategies in response- • Tying planning process to FEMA’s Community Rating System so strategies result in tangible benefits to people- • Multiple benefits of planning as an approach to address sea level rise-

13. Adaptation Strategies:Role of Takings • Shifting rights and roles regarding property • Takings and adaptation strategies • Some of the new considerations: vulnerability, inundation and risk reduction • Borough of Harvey Cedars v. Harvey Karan (2013) • Evolution of rights (special and general benefits) • Calculating benefits and just compensation

14. Erin@Deadylaw.com www.deadylaw.com