Welcome to Roger Williams University School of Law. We are so happy that you guys all made it here today, despite the weather. You are our hearty and true crowd, and you have come to talk to us and with us about coastal resilience today. We're actually expecting about 150 people today, and I suspect we'll lose some of them. But I also expect that we'll be seeing some people trickling in throughout the morning, especially. So we'll try to direct them over to this side, where there seems to be a little bit more space. This is our 11th Marine Law Symposium, Legal Strategies for Climate Adaptation in Coastal New England. I'm Julia Wyman. I'm the director of the Marine Affairs Institute here at the Law School, and I'm also director of the Rhode Island Sea Grant legal program. This year, we are very pleased to co-host our symposium with the Law School, Rhode Island Sea Grant, and the Georgetown Climate Center. We are also pleased that we are including our symposium in the Roger Williams University theme of 2018-2019, Ocean State of the Ocean, the Challenge of Sea Level Rise Over the Coming Century. I would like to introduce you to our interim president of the university, Andrew Workman, who will formally welcome you to the university. Thank you, Julia. I was talking with Julia before this, and asked how she came up with the topic for the symposium. And she said, just for the last year and a half or so, there's been so much interest in local governments and state governments and various other private and public interests in this issue, and that she really had to do this symposium. And that's really how we came up with the idea of our annual theme. Each year, we have an annual theme for the university. It's sea level rise. Seemed to be a theme. We always try to pick a big theme that's interdisciplinary that every part of the university can have a piece in. And it also has to be an issue that's urgent. And I think Julia's thinking and what she saw in the community and what's drawn all of you here is, in fact, exactly what caused us to pick that theme. And what we've decided is it's not really just going to be a theme for one year. This is such an important problem. It is a problem that can only be handled by all forms of human knowledge coming together, whether it be law or engineering or architecture or business. In fact, even our criminal justice program is looking at this. This is a theme that the university, and I think all universities should be addressing. And so we're pleased to have you here today, but we're hoping that this is not the only time that you come to Roger Williams, because we see in the years to come that this is going to be a theme that defines the university and defines our purpose. So welcome. Have a great day. It looks like an incredible program. And we're very pleased to have you on campus. So for those of you who aren't familiar with the Marine Affairs Institute, we are a partnership of the Law School of Rhode Island Sea Grant and the University of Rhode Island. We train the next generation of marine and coastal law and policy professionals. And we do that through courses in all aspects of marine law. We have courses in natural resources like ocean and coastal law, environmental law, and climate change law and policy. But we also have courses in maritime courses like Admiralty, Piracy, and Marine Insurance. We offer a joint degree program with the University of Rhode Island, which allows our students to get their JD here at the law school and their master of marine affairs over at the University of Rhode Island in just three and a half years. And like every other aspect of the law school, we are very dedicated to experiential learning for our students here. Through our Rhode Island Sea Grant Law Fellow Program, we match second and third year students with outside organizations that have a question of marine law or policy. And we work with all types of different organizations, nonprofits, for-profits, and government agencies. Reed Porter, our senior staff attorney who's right here in the front row, runs that program. And he's happy to talk to you if you're interested in learning more about it throughout the day. The rest of our Marine Affairs staff is also here in the front row. So in addition to Reed, we have Melissa Shalik, who is our policy analyst. And she's with us this year looking at different issues related to coastal resilience throughout New England. We also have Sarah Matherson, who is our program coordinator and our newest member of the team. So in addition to educating our students, we also conduct research and educate the public and professionals in ocean and coastal law. And that's why you guys are here today. So our symposium, Legal Strategies for Climate Adaptation in Coastal New England, is an issue that we've been thinking about for a really long time. And our focus today is going to be looking at some of the challenges that communities here and throughout New England are facing with a changing climate, and some of the ways that we can use laws, policies, ordinances, and regulations to proactively plan for the future. This morning, we're first going to hear about some of the physical problems that some of our communities are facing, things like rising sea levels and increased flooding. Knowing and acknowledging those problems is just the start of our conversation. Now that we're better able to predict the effects of climate change, we have to grapple with what's the duty for state and local governments to prepare for it. Our second step of speakers today is going to ask that question. Our third speaker is going to talk about some of the legal issues related to recent hurricanes and recent flooding. Our last morning speaker is going to look at some of the issues that local governments are facing related to infrastructure, maintenance, and sea level rise. After lunch, we're going to switch gears a little bit and instead of really just talking to you, we're going to ask you to be a real big part of our conversation. We're going to have a presentation by our co-hosts, the Georgetown Climate Center. Unfortunately, the weather wasn't on our side for getting them here in person. Their flight last night was canceled, but we do have wonderful technology that's going to allow for them to be here through the web and we'll be able to see their presentation and talk to them and ask them questions. They are participating in the rest of this morning, so right now they are watching us so that they'll be up to speed on all of the issues that we cover in the morning to help prepare their talk in the afternoon. After their presentation, we're going to go into breakout groups and we're hoping to hear some of your experiences about the issues that you've been facing and some of the ways that you've dealt with those issues. You should have received a blue piece of paper when you walked in this morning. If you could take the time to circle which breakout group you're most interested in. There is a basket up in the front and on your way out for the 10-30 break. If you could just drop it in that basket, we'll do a quick assessment of how many folks are gonna be in different rooms. If you're not planning on being here for the breakouts, there's no need to complete that form unless you really want us to know your questions. We have designed the day to have plenty of opportunities for you guys to ask questions of each individual speaker, but in the event that an issue comes up that you don't have the opportunity to ask a question, we've placed white cards on the ends of each row, so please take some time to write down those questions. We have a basket up in the front where you can put those questions. If we don't get to the questions today, we're hoping to go through those questions after to help inform some future research. I will say, fair warning, you're going to hear from a lot of attorneys here today. We are not providing any legal advice, so any ideas that come up either during our sessions or during any of the breakout sessions, we advise you to consult your attorney for that. Today is all about education, and we at the Marine Affairs Institute and the Rhode Island Sea Grant legal program are non-advocacy. Before I introduce our first speaker of the day, I wanna do a few housekeeping items. If you're not familiar with this building, out to the right are the bathrooms toward the back of the building. We have bios and agendas online. There is also Wi-Fi that you are all connected to. There should be sheets around so you can easily access it. In the event, the unlikely event of an emergency, there are multiple exits both out of this room and out of this building, so to my right, where most of you came in is one exit out of the room. To our left is also another exit, and there are a couple of exits back here. And if you look down the hallway toward the end of the building, you'll see many exit signs that lead directly outside of the building. So our first speaker is gonna help us understand some of the physical challenges that communities are facing with climate change. Sean O'Rourke is the Director of Stormwater and Resiliency for the Rhode Island Infrastructure Bank and the Chief Resilience Officer for the State of Rhode Island. Prior to joining the Rhode Island Infrastructure Bank, Sean was the National Green Infrastructure Director at the Trust for Public Land and was the Director of Sustainable Design at the Boston Architectural College. Sean has a Master of Landscape Architecture from SUNY College of Environmental Science and Forestry and a BS from the University of Vermont. Please do your best to welcome Sean. Good morning, everyone. I'm definitely not an attorney, a landscape architect, but happy to give a lot of legal advice if anyone needs it. Also, I also realized this morning that I am not in mid-season shoveling form yet, so I'm moving a little bit slower than I thought I would. But a big time thanks to Julia, all of the partners and sponsors of the event today. Also, my friends at the Georgetown Climate Center, sorry we're missing you here, but good to see you. I'm gonna try and give a really brief overview of some of the impacts and challenges with climate change that we're seeing right here on the ground in Rhode Island. As many of you know, and I see a lot of really friendly faces as well as some new ones, which is always really exciting, I'm gonna give an overview of our Climate Resilience Action Strategy which the governor released this past summer and really lays out a roadmap for how we can better prepare the state for a change in climate. And I wanna recognize a whole lot of folks in the room here who are co-authors on that strategy and really dug deep and worked really hard and collaborated with me on the development of that strategy. That strategy highlighted that we have a lot of work that's already underway across the state, from non-profit partners to academia to state agencies, there's a heck of a lot of work that's already happening. But we also realized, this is sort of the case of the more you know, the more you don't know, is that we have a lot of work to do. And some of the ways that we're trying to accelerate that work here in Rhode Island is looking for ways to incentivize or provide ways to really accelerate that work on the ground that we know we all need to do. A couple of those, one is, how do we look at financial incentives to really bring new or nontraditional partners to the table or look at what some of the credit risk agencies are doing now with working with municipalities with climate change? And another one that we saw and that I particularly am not well versed on but learning more and more every day is the legal implications of climate change. We think around the state about all of the municipal roadways and assets and dams that are at risk. How are municipalities and asset owners and utilities going to be able to deal with that increased liability that climate change is going to be presenting it with? So I think today is a fantastic discussion to be able to look at some of those challenges and look for some of those incentives or those hooks to really bring people to the table to really drive action on the ground. I'm gonna start with some national overview of what we're seeing across the country. Rhode Island dies that really quickly and then jump into some of the impacts we're seeing as a result here in Rhode Island. If we look at the country as a whole, the natural disasters have been accelerating since over the last century. Between 1970 and 1994, there were only seven years with more than 50 natural disasters. Between 1995 and 2018, there were only five years with less than 100 natural disasters. So and then in 2017 and 2018 alone, the United States has suffered over $300 billion in damages. So we can see that the increase, there's an increase happening right now on the ground in not only frequency, but also in severity across the country. This is not only unique to the United States. We could also show graphs that this is happening globally and this is just from natural disasters. You can think about some of the other impacts we're seeing globally. This is also having enormous cost to the insured as well as the uninsured. And you can start seeing some of the legal implications of the insurance industry as well as we look at the rising severity as well as frequency of climate change. Of the top 20 costliest hurricanes to land on US soil, all but three have occurred since 2000. So we think about this is a really major impact to not only states, but also to municipality and asset owners. One of the other things that we learned acutely through the development of our resilience strategy was the state can be really prepared. We can do everything in our power, but really it comes down to the municipalities who oftentimes are strapped for cash, strapped for resources. And I always like to say that better prepared municipalities equals a better prepared state. And so how we best work with municipalities from a state level is going to be absolutely critical to addressing this challenge all the way down to the ground. In Rhode Island we're seeing some of these same challenges and through the development of the resilience strategy we worked very closely with a science and technical advisory board. Many from University of Rhode Island, from Brown University, Roger Williams and others to look at six key what we call manifestations of climate change. Sea level rise, warming air temperatures, warming water temperatures, storm frequency, changing biodiversity which was I was thrilled that we were weaving in natural systems into this discussion as well and we weren't just thinking about big gray infrastructure and then precipitation and inland flooding. A couple of key stats to just prime the pump for the conversation today. And I know many of you have probably seen these stats, know these stats for taking them to heart but just to be able to make sure we're all singing off the same song sheet. Temperatures in Rhode Island have increased more than three degrees since the beginning of the 20th century. And you can think about what impact that has on our populations inside of our urban areas around the state. Over the past 50 years, the surface water temperatures of Narragansett Bay right here at our back door have increased 2.5 to 2.9 degrees, increasing not only storm intensity but also a changing fisheries population as well and the impact that we're seeing on our state's economy. Sea level rise has risen 10 inches in Rhode Island since 1930 and that's right down at the Newport tidal gauge, not far from here. And the updated NOAA projections as of January, 2017 put sea level rise close to 2.2 feet by 2040 and up to almost nine feet by 2100. I would imagine that we're probably gonna start to see another change in this coming from NOAA pretty soon as well. And intense rainfall events in New England have increased 71% since 1958 and Rhode Island's annual average annual precipitation has increased more than 10 degrees, 10 inches since 1930. So this is, while we're talking a lot about the coastal impacts and implications of climate change, this is also a statewide issue as well and there's been an enormous amount of work and for good reason here in the ocean state, 400 plus miles of coastline. There's been a lot of great work done here in Rhode Island. We also need to think about the whole state as well and increasing precipitation events as something that's acutely impacting not only the coast but also the inland communities. So what's at risk? We've got all these changes that are happening nationally. Locally we're seeing it on the ground. We're not arguing why climate change is happening. We're just looking at the things we can see every day on the ground and realizing that the conditions are changing. Over 15,000 active flood insurance policies covering just under $4 billion of property. Statewide planning did a great study a couple years ago looking at state and municipal roadway and how it was impacted with increasing storms and climate change, I mean about 337 miles of those state and municipal roadways. If you look around the state, the majority of impacted roads are owned by municipalities. Again, one of those other hooks of how municipalities are on the front lines. Salt marshes provide recreational commercial benefit for fishing activities estimating over $6,000 an acre. And again, through the development of the strategy and I know there's a lot of great work happening around the state, we're looking at natural systems as infrastructure and looking at the ecosystem services that they provide to the state. They aren't just for nature for nature's sake. These are actually performing an enormous economic as well protective ability for our municipalities around the state. We need to really think about natural systems as a critical first line defense around the state. 100% of our state drinking water supply is at risk. About 85% of the state's drinking water come from surface reservoirs. There's great work going on in the southern part of the state at URI looking at the saltwater intrusion on drinking wells, right? So it's not just a surface water condition with drought, but it's also saltwater intrusion on the coastal areas. Our state ports are all at risk, obviously right on the front lines, right on the coast. We bring in about 3.1 million tons of cargo and an enormous job creator and job engine for our state. So you can think about what the impact on that asset is. Again, on the natural resources side, we have under 400,000, just under 400,000 acres of forest land. There was a fantastic article written by Alex Kufner in the Providence Journal a week or two ago on the impact of our state's forest with gypsy moths and drought and pests and what a driver that's having not just on the economic impact, but also the resilience components of that as well when those trees and we have dead trees along roadways for safety as well as for falling on power lines. So I would definitely encourage everyone to take a read of that article, it's fantastic. And then Providence County, if we think about people, right? Again, we oftentimes leave out natural systems. We all too often leave people out of the equation as well. This is the resilience really people are at the core. Providence County has the worst air quality in the Boston Worcester Providence metro area and has received an F for high ozone days. We also can look at tree canopy coverage as well. And if you look around city of Providence, the lowest income communities have the lowest tree canopy coverage and no surprise also have the high instance of urban heat islands as well. Trees absolutely grow on money and that's something that we need to be able to look at around the state and around the country. And actually later today, we have a number of folks coming in from Washington, DC from the Nature Conservancy as well as American Forest to look at how we start to evaluate the potential for a statewide urban tree canopy goal, which would be really exciting. So as I mentioned, there's a lot of work that's been happening across the state. We're trying to leverage all of the great thinking, all of the great studies and strategies that have already been done instead of doing new ones right now and really incentivizing it's gonna take everybody in this room, all the leaders in this room to really come together and to really leverage all this great work that has happened. A couple other great tools. I see our friends from URI and the Coastal Resource Center. Storm Tools has been just a fantastic user-defined tool to look at sea level rise and risk as well as the Coastal Environmental Index, the Siri tool. So a couple of those other tools that really Rhone Island is leading nationally on trying to put the power of information into the user's hands so we can make better decisions with the best available data. A couple of just quick examples of ways that we're trying to take action by identifying very specific recommendations for vulnerability and risk around our state. In 2017, many of you may be aware of a fantastic study that the Department of Environmental Management released looking at the implications of climate change on wastewater treatment plants. We all know wastewater treatment plants, all 19 of them around the state, really acutely impacted by climate change because where are they located? At the bottom of the hill, right? Near our rivers and near our bay and coastline. This fantastic study went through all 19 really looked at what are the very specific improvements that each of those facilities can make with climate change in mind. Most importantly, trying to align the life cycle or the intended use of a particular investment with best in class climate change projections, right? So that we're ensuring that if it's 30, 50, or 90 year investment we're aligning climate change projections. And our friend Kate Michaud and Warren did fantastic work with their wastewater treatment facility exactly along these lines. Another one is in the inland areas. I know again we're talking about coastal but I always have to throw in the plug for the inland conditions. Rhode Island has 668 inventory dams. And if you think about the impact on dams with increasing precipitation events, not only the amount of water but the intensity that that water is now falling out of our skies, those dams are particularly at risk. 96 are classified as high hazard. And we're actually just finishing up a really interesting study at DEM right now, looking at the high hazard and significant hazard dams and how vulnerable they are to the 500 year storm event. And the dam is the dam question and I was just talking with the friends at CLF. Dam, the liability of dam owners is a particularly of interest to our state and one that we're just scratching the surface of. So we're gonna be looking and digging into that a bit more and I imagine that's probably gonna come up a few times in the conversation today. The strategy goals to end, since I'm like contractually obligated to talk about resilient roadie and probably half the room can take their nap for five minutes. But the resilient roadie strategy really looked at three main goals, catalyzing the planning and vulnerability studies that have already been done, that big long timeline list. Let's take the great work that's already been done and really try to push that towards implementation. Identify and prioritize resiliency action that's taking control. So what are like the policies? What are the budget items? What are the agents? What's the opportunities within each individual agency that we can really drive so that we can really control the implementation and work with those municipalities and then finally prioritize actions that promote cross agency collaboration. If we only look at the mission and drivers between each of the individual agencies around the state, we are never going to be able to move the ball forward. The only way that we're gonna be able to create a resilient Rhode Island is by all of our agencies around the state, stacking resources, sharing data and singing off the same song sheet in terms of resilience priorities. We started that work here through the resilient roadie work. The EC4 I think is doing better work on collaborating. We just included Rhode Island Public Transit Authority around the table as well. So we're really trying to bring that coordination forward. And that resilient roadie I think was a great step forward. We had six chapters making the case for climate resilience. I'll put a plug in for this chapter inside the strategy. I think it was a tremendous overview of the best available science and data and impacts that our state is seeing with a change in climate that was developed by the Science and Technical Advisory Board. It's like four or five pages. It takes a ton of data and summarizes it into a really concise document. And there's a couple of quick pullouts. If you ever need some quick hits on being able, some talking points for decision makers or in meetings, I think this is a one stop shop. We looked at natural systems, community health and resilience, emergency preparedness, critical infrastructure and utilities, which was a monster and beast of a chapter. And then financing climate resilience. We recognize that this stuff is super expensive. It takes a funding quilt and being able to look at different ways to fund and finance these projects within existing mechanisms, as well as new and innovative financing mechanisms, absolutely critical to pushing us forward. So I think it provides a really interesting framework as well as roadmap. But again, we recognize that we have a heck of a lot of work to do and we're gonna be looking at all of you around the room to kind of collectively pull us forward. And thank you again for the opportunity to present today. Honored to be here, really excited about the conversations that are happening and look forward to hearing the outcomes. And check out climatechange.ri.gov when you have a minute. Great, thank you so much. Sure, it's a bit of a misnomer right now. We've tried to make the change from 100 year and 500 year storms to the 1% annual chance or the 2% annual chance. It's the 500 year storm. There is a 2% chance of that storm happening in any given year. So it's the percentage of the probability. It's been, the typical terminology was 100 year, 500. But we can say we're getting a lot more 100 year and 500 year storms per year than we ever did before. So that terminology really is out the window. We are, we haven't, have we seen a 500 year storm? When was the last, 2010 floods? The 2010 floods was a 500 year storm event. And we could see the impact that that had on wastewater treatment facilities in Warwick. You know, the Pocotuck River and others. I used to be on the town council and, you know, the things that we want to try and do are usually very expensive. But, you know, we have a fragile system here. So I'm trying to figure out if there's a way we can figure out what can we do easily and what are the harder things that we can sort of try and ease people into. Do you guys have a strategy, you know, that you're presenting to the communities that they know? Yes, we're trying to work very closely with our partners around the state. I mentioned, you know, two tools that the Coastal Resource Center and URI have been developing, the storm tools and the Coastal Environmental Risk Index. They're providing a better data visibility on which assets and structures and roadways are gonna be flooded and impacted at different storm events. So that's presenting kind of the first line. The second line is then engaging with those municipalities, business owners, landowners in those municipalities to better understand how they can change and how they can update some of those facilities. That's where we're looking on trying to build a statewide resilience program that works directly with the municipalities to bring those resources to bear locally. So we don't have the particular strategy yet, but we're building up the tools to better communicate with those municipalities about what's at risk. One more question, and then we'll close it. Infrastructure bank. Yes. So does that mean I'm going to say, Sean, it looks like the drainage after 114 today was awful. Can you give us a big loan to help improve that drainage? Is that sort of bank you're running? Great question. We got a plug here in the front for the Rhode Island Infrastructure Bank. Jeff Deal at the Infrastructure Bank would be thrilled you asked that question. So the Rhode Island Infrastructure Bank has been around for about 30 years. Primarily, we focused until about four or five years ago, primarily managing the state revolving funds for drinking water as well as clean water. And those funds come from the Environmental Protection Agency. We then get matched from the state. And then we loan out lower than market rate loans to municipalities and nonprofits around the state to make infrastructure improvements. The Infrastructure Bank and the Governor and Treasure Magazine are about four years ago said, hey, what if we expand the mission and mandate of the Infrastructure Bank to be more than just clean water and drinking water? But we also now include municipal road and bridge, brown fields, stormwater, climate resilience. So we've broadened the opportunity to work with municipalities around the state. So one of the ways that, and I came on about a year and a half ago, just under two years ago, and because we recognized, can we expand from just thinking about working with wastewater treatment facilities, drinking water plants, but can we start weaving in climate change, climate resilience, as well as stormwater management into the loans that we're providing with these municipalities? And so it's really been a major driver for doing better than business as usual work when we're asking better questions about, hey, what is the lifespan of that asset that you're looking to build? Are you hardening those pump stations that we know are going to be impacted by certain storm events? Are you elevating that roadway, right? Because now we're thinking about what is the risk in terms of a borrower to repay? And so we're weaving in better questions, I think, into our loans. And so the Infrastructure Bank is ready and willing to partner with municipalities around the state on more traditional infrastructure needs, but also to drive conversation on the climate resilience side, as well. Yeah, thanks. Thank you, John. Yeah, thanks. All right, so now we're going to shift gears and start talking about some of the law and policy questions. Our next two speakers are going to explore whether state and local governments are liable for failure to adapt to climate change. Deanna Moran is the Director of Environmental Planning at the Conservation Law Foundation, where she focuses on climate adaptation and the built environment through planning, development, and regulation. Deanna holds a Bachelor of Arts in Environmental Design from the University at Buffalo and a Masters in Public Policy and a Masters in City and Regional Planning from Rutgers University. Her partner in presentation, Elena Mahali, is a Staff Attorney at the Conservation Law Foundation, where she works on their resilient communities program, focusing on developing and implementing law and policy solutions to enhance community climate preparedness. She received her JD summa cum laude from Vermont Law, as well as a Masters in Environmental Law and Policy. Okay, good morning, everyone. Thank you for the introduction, Julia. As Julia mentioned, Elena and I are here from the Conservation Law Foundation. Today, we're going to talk about governments, climate adaptation, and legal liability. Exciting, I know. And our presentation's going to be about 45 minutes in all. We'll leave some time at the end for questions. I'm going to really start us off with some stage setting before Elena dives into some of the legal research and the legal concepts that we've been looking at. So I think everyone's major takeaway from Sean's presentation is that climate change, the physical effects of climate change are becoming more and more evident. It is no longer kind of this existential crisis that people can't resonate with. People are seeing it in their day-to-day lives through more extreme storms, precipitation, heat, wind, and unfortunately, this is really becoming the new normal. But at the same time, over the past 10 or 15 years or so, we've seen new tools emerge that have helped us model and assess these risks. And these tools are becoming more sophisticated and more accurate than they've ever been. And this data has become readily available at the international and national levels. But more importantly, it's becoming more and more available at the local level as we're seeing communities invest in downscaled models, which is essentially a modeling process where we take information known at large scales and use it to make predictions at the local scale. And governments are using these models to assess risks at the regional, state, and even city level. And so this is just a couple of examples regionally of places in Rhode Island and in Boston that have undertaken these projections and modeling processes to make assessments of risk for the city or for the state. But in spite of this readily available and increasingly accurate data, the prevailing practice has been and continues to be to design, build, and regulate according to conditions of the past rather than those that we're observing presently or anticipating imminently. Most of our planning and land use decisions are still based on the assumption that conditions are static, even though we know now that they are not. And so what does this mean for local governments? When we know that these risks exist, we are publicly acknowledging them, but we aren't acting on them in a concrete way or at least not quickly enough for us to avoid the inevitable consequences that we're predicting. Well, litigation has long been recognized as a tool for compelling change in individual behaviors and industry standards. And as many of you in this room probably know, this dynamic is really evident in product liability, particularly the successful wave of tobacco litigation in the 1980s and 90s. But in the climate change context, legal intervention is not a new concept. It is a concept that evolves over time and this is simply a new area of its application. And we've actually seen it explored to some extent already to compel climate mitigation. And by that I mean the reduction of greenhouse gas emissions. There's two cases up here that are fairly significant. One is a small town in Alaska called Kivalina that was completely destroyed by catastrophic flooding. And they saw monetary compensation from a fossil fuel company. The other case was brought by state and local governments that sought to cap and abate the emissions of fossil fuel-fired power plants. So slightly different remedies being sought there, but a similar defendant. And ultimately both of these cases were dismissed in part because the court found it to be a political question. And so this first shift, this first trend that we saw in litigation was to see whether or not it could be used as a route towards getting a mitigation strategy. But so far these cases have been fairly unsuccessful. And so now we're seeing a shift toward whether or not litigation can be used as a lever for action on adaptation. Which brings us to today's topic. How might local governments or state governments or federal governments be exposing themselves to legal liability for failing to adapt to climate change? Now my colleague Elena is going to dive into some of the specific types of claims that might be brought against governments. But before she gets there, I want to give a little bit of context and talk a little bit about how the world has changed over the past several years and why that's relevant in this context. And also just kind of note and acknowledge the institutional barriers that might be making it difficult for state and local governments to have this huge shift in regulatory frameworks. So this is a slide that I actually borrowed from a presentation that Elena and I attended a couple years ago. And the presenter at the time was talking about how climate impacts on government operations was kind of the issue that everyone knew about, but no one was talking about. And so this is a photo of a parking garage in coastal Florida and there is an octopus floating in the middle of it. And the presenter posed the question, is the octopus in the parking garage the new elephant in the room? Well, fast forward a couple of years. There is now pretty public acknowledgement that climate change is here. We are seeing these impacts. People can resonate with it more and more as they see these extreme storms. This is a photo of Boston's waterfront from this past winter when we experienced unprecedented flooding from back to back Nor'easters.  Major thoroughfares being shut down, business operations stalling, major rescue efforts. And in spite of all of the planning that the city of Boston has done to prepare for climate change, we were unprepared. And this is not something that, this is something that we're seeing more and more often in cities across the US that have been thinking about and planning for climate change for five, maybe even 10 years. But when the impacts actually hit, they're not prepared. And this is important because this increasingly public recognition and this public discourse around climate change and its impacts and their certainty lends itself to this concept or foreseeability, which is gonna become really important later when Elena's dissecting the components of some of these claims. Again, we're seeing acknowledgement of these risks in mainstream media. In the New York Times, talking about the certainty of sea level rise, not an academic journal or a scientific article. And there's been an increase in, across the board in the US, an acknowledgement that climate change is happening. The Yale Program for Climate Change Communication, showing the most recent data that 70% of adults in the US acknowledge that climate change is happening. Now that might not seem like a lot, but it's definitely a lot more than it was five or 10 years ago. We're seeing roofs cave in from snow loads in areas that just weren't accustomed to that amount of precipitation. Hospitals losing electricity in extreme storms because nobody thought twice about putting mechanicals and backup generators in basements or on ground floors of buildings. And all of this has an obvious impact on public health as well. But the physical impacts and the public health impacts are not the only impacts. We're seeing the effects of climate change touch every sector that the government has involvement in. And the government plays an essential role in all of those sectors. And for these reasons, there's new urgency being attached to the role of adaptation strategies in regulation, planning, and every other discipline you can imagine, pretty much. And we're starting to see an emerging body of research and best practice, but we haven't yet seen that across the board shift in our regulatory frameworks. And part of the reason for that is because there are institutional barriers to shifting those frameworks, whether it's in our zoning codes, building codes, floodplain emergency management. Many of our building codes, for example, do not consider the increased risks of climate change. We're a little bit behind some other countries on this. There's other countries outside of the US that have at least acknowledged this as a major barrier and as a problem. There's a panel in Canada looking at this issue to try and revise their codes to address this. But we're a little behind in the US. And it's particularly challenging in states like Massachusetts where local governments are actually preempted by the state building code. They cannot regulate above it, even if they wanna regulate more stringently. And so outdated codes like this provide one huge barrier to local adaptation. But even at the federal level, our floodplain management strategies locally are largely and inextricably tied to FEMA practices and standards. And as many of you in this room probably know, there's pretty widespread criticism about the accuracy of existing FEMA floodplain data for various reasons, mainly tied to the age of a lot of the data that they're using. This map on the right shows the relative age of the effective firm maps across the country. And it's a little hard to see, but that dark red color is where they're 15 to 40 years old. But more important than that, FEMA doesn't acknowledge climate change in their maps. They don't incorporate forward-looking data. And for something like flooding, that's significant in the climate change context. And this map on the left, which is also a little hard to see, shows the areas of Harris County that flooded during Hurricane Harvey, both inside and outside of the FEMA designated floodplain. And it's a little bit hard to see, but the lighter blue areas are the floods that happened outside of the FEMA designated floodplain, and they're significant. And so we have these communities that are fairly unprepared for these risks. And so what does this mean for local governments, state governments? The fact that our planning and land use systems and our regulatory systems are rooted in static and sometimes outdated information is relevant to, but not an excuse for, failing to adapt to climate change. The increasing knowledge and availability of data lends itself to the need for that government action on adaptation. And we're already seeing, we're beginning to see litigation used as a lever to make that action on adaptation happen more quickly. And so with that introduction, I'm gonna turn it over to Elena, who's gonna dive into the legal analysis that we've done on government liability and some of the claims that could arise. Thank you for that intro, and thank you to Julia and the crew for giving us such a warm welcome here. It's nice to come in from the slushy cold to this warm embrace. So as Diana mentioned, my name's Elena Mahali. I'm a staff attorney at Conservation Law Foundation and I'm gonna spend the next 30 or so minutes digging into the legal issues that could arise for local governments who are either failing to act in the face of what was just presented as pretty widely acknowledged risks from climate change or liability issues that could arise for governments who are actually proactively trying to adopt adaptation strategies in a world where property rights are so sacrosanct. So my goal is to give an overview of this topic and really just give us some shared language and case studies from which we can refer back to and work together on as we move into the solutions-oriented section of the afternoon and the discussion breakout sessions. My talk is divided into two parts. The first part, as I noted, I'll be talking about claims that could arise from government in action in the face of climate change. The second part will focus on claims that could arise from governments actually trying to be proactive and acting in the face of climate change and meeting disgruntled developers or property owners and suits that may arise in that context. Some preliminary notes, Julie already mentioned this, that while I am a lawyer, I am not your lawyer, and this is not an exhaustive presentation on liability but merely a primer. I did bring a couple of these reports that CLF published in January of this year that gives a lot more detail than what I'm able to go into today. You can download them for free on our website. So go to clf.org if there aren't any more of these left over and you want one. So let's dive right in to part one. The first claim I wanna talk about is a negligence claim. So a little flashback for those lawyers in the room, sorry for the repeat of torts 101, but in order to bring a negligence claim, first of all, I'll back up. Negligence is just this common law principle that we expect everyone around us to act in a certain way so as not to unreasonably injure those around us. And in order to bring a negligence claim, one has to prove four elements. One, you have to show that the government owed you some kind of duty to act a certain way. This is sometimes referred to as a standard of care. Second, you have to show that that duty was breached in some way and that that breach caused your harm. The reason why the duty element is highlighted here is because it's where this concept of our increasing knowledge of climate change and the more and more data that we have available to us really comes into play. Because a court doesn't have a go-to standard duty that they always use for governments. Rather, it's a factual, fact-specific inquiry that a court will look at a number of different scenarios and ask what was happening at the time? What were the circumstances at hand? What knowledge was known at the time? And I pulled out two specific things that courts routinely look at. And one is what was the severity of the potential harm of the activity? The higher the hazard, the more likely that that standard is gonna be elevated and the expectation will be higher. Second, courts will look at the foreseeability of the harm and that's where all of this knowledge and information about our ability to predict certain climate change impacts and flood maps and other data that was available are gonna come into play into the equation. I find that a lot of this is much easier to understand in the context of a case study. So let's move along to a case study. So this was a case that arose in 2014 based on heavy rainstorms that struck the city of Chicago and millions and millions of homeowners were impacted and ended up filing for insurance claims with farmers insurance and farmers insurance paid out those claims and then filed a subrogation action against the city of Chicago and municipal governments surrounding it for negligence. And basically what they were alleging is hey city, you had a duty to prepare for this level of rainfall and you should have elevated the capacity of your stormwater system to be able to handle this rainstorm and because you didn't, you breached that duty and that breach caused the harm which is us needing to pay out all of this money to homeowners. The way that they were establishing the duty component in their complaint was through four things.  Second, that climate action plan laid out specific defects in the stormwater system. Third, you had been pumping reservoirs in the past and you didn't do it as well during this storm. And fourth, there was publicly available climate modeling that predicted this level of rainfall was very, very likely to happen. Ultimately this case was voluntarily dismissed by farmers insurance and there are varying theories as to why but what it did is it definitely created a stir in the legal community and municipalities especially of the risk of this kind of lawsuit. Not only from plaintiffs who were impacted by flooding like the homeowners but also the kind of subrogation claim that an insurance company could bring against the municipality. A similar case is being brought right now and pending in the courts in Canada. A group, a class action group of homeowners on a lake in Ontario had suffered from repeated flooding in the past and the Ministry of Environment knew this. The Ministry of the Environment had control over the lake water levels and despite knowing that there were going to be heavy rains the government decided not to take any action and let water out of that lake and as a result, there was flooding and this is a class action negligence claim for almost 900 million Canadian dollars and it's similar to the Chicago case and it's still pending. I will note that just because the plaintiffs in the Chicago case pointed to the fact that they had a climate action plan that in and of itself in today's world would not be in and of itself a cause for the same kind of negligence claim in that because they identified stormwater impacts as a problem in 2008 in their plan even if a city didn't have a plan that identified that there's enough publicly available information now that I don't want anyone in this room to go away thinking that if I write down in my plan that I have to work on something that you're setting up a duty for yourself that wasn't already there, it's there whether or not it's in a plan or not. Okay, now that you have a sense of what a negligence claim could look like in the context of failure to act in the face of climate change let's talk about one of the biggest obstacles to these kinds of cases and that is sovereign immunity. Sovereign immunity generally means that a sovereign or a government is immune from lawsuits or other legal actions except when it consents to them. This sovereign immunity extends to states and state officials who are acting in their official capacity. At first this was just a blanket immunity but actually states and the federal government have been opening themselves up in small ways to liability through what are called tort claims acts. We'll talk about the Rhode Island tort claims act because we're here in Rhode Island and don't get too scared by this visual that looks like a planetary space system. I will describe it and walk you through it slowly over the course of a couple of slides but essentially Rhode Island's tort claims act says that Rhode Island and the state government and any political subdivision thereof is liable in all actions of tort, tort being a claim like negligence in the same manner as a private individual or corporation. So they've sort of said actually we're opening ourselves up, you can sue us but there's this thing called the public duty doctrine and that is gonna shield us from liability whenever we're acting in our public capacity and doing something that is something that only a public government could do that a private individual couldn't do. I'm gonna talk about this public duty doctrine exception in more detail in the next slide but it serves as a pretty big barrier at times. So as I said it functions as a defense to a negligence claim and essentially what it is is the government saying in order to operate and make sure that we're not fearful of litigation at every turn at everything that we do that there's some deleterious impact and that we're gonna get sued we need to have this exception so we're able to do our jobs. However, there are two exceptions to public duty doctrine so we're now in the realm this is why I have this diagram because there's actually like sovereign immunity on the outside that's the big shield and then the Rhode Island tort claims act is a carve out in that shield and they're saying you can sue us under the tort claims act but then the public duty doctrine is like a band aid on top of that and then there are exceptions to that so it's complicated but these are the two exceptions and I'm gonna walk through them. The first is a special duty exception. This is the government saying okay we've generally said when we're doing a public service it's a public duty that we're gonna be immune but there are times when we have developed some kind of unique special relationship with the plaintiff and the plaintiff has been brought into our realm of knowledge to a specific enough degree that we owe them a special duty and in those situations we're gonna open ourself up to liability. So there's two cases here one where it was not found to be the special duty exception one that there was. The first is a scenario where you had an intersection and the government had this local government had failed to maintain a stop sign and as a result there was a collision and the plaintiff brought a suit against the government for negligence and the court said while the state has an obligation to in general keep things safe for the general populace this was a scenario where they couldn't have predicted you Barbara or whoever the plaintiff was that got injured you were a specific person and this was beyond the pale of what the government was expected to prepare for and you had no specific duty they had no specific duty to you and so there the special duty exception did not apply. In contrast in this quality court condo association matter you had a homeowner in a condo association that was repeatedly going back to the building inspector at the government level and saying I have this problem you need to address it here's documentation and the court decided that while a municipality shouldn't be the general insurer of every construction project within its limits here there was enough information and specific knowledge made available to the government about this specific plaintiff that you did at this point owe them a special duty. So that's the first exception to the public duty doctrine first way that you can kind of pierce the veil of the public duty doctrine. The second exception is called the egregious conduct exception and here there's sort of a three part test first the state has to create some kind of extremely perilous situation. Second they have to have actual or constructive knowledge that the perilous circumstances exist and third the state has to be given reasonable time to fix it and then fail to do so. The most commonly cited case in Rhode Island for this exception is this Verity Vedanti case where the city had failed to properly prune and cut back vegetation on a sidewalk and they were given notice of it, of the dangerous circumstance, reasonable time to fix it, didn't fix it, somebody walked around the sidewalk and out into the road to go around it and got struck by a car and seriously injured. So that's a scenario where the egregious conduct exception applied and the government was liable to a negligence claim. So let's just review both of these because I just threw a lot of information at you in the context of a suit that has something to do with climate change. So this was a case back in 2003 where two couples sued the town of Warren Rhode Island for negligence saying it was negligent to issue building permits and certificates of occupancy to these newly built homes that a couple months after moving in the plaintiffs realized routinely flooded. The town of course claimed a defense of the public duty doctrine said hey, we were acting in our public capacity issuing these building permits, no individual would ever do that, it's a government function, we're immune. And the plaintiffs were trying to get in there, pierce that veil with one of the exceptions. So the court walked through and said, this wasn't a situation where the government owed a special duty because there was no singular identified plaintiff within the realm of knowledge and the plaintiffs tried to come back and say, hey, but you could have identified us just, you knew that this home would be bought by someone, isn't that enough? And the court said no. That is too broad of a universe of people to identify a specific plaintiff, so no special duty and no egregious conduct. This was flooding, it's property loss, not loss of life. It did not rise to the extremely perilous situation as the person who was forced to walk out in the middle of the road. Takeaways from this negligence little subpart are our understanding of climate change impacts is increasing and as a result, so too is the government's general duty of care. Also, as a result, we're seeing more and more negligence suits arising in this context for governments failing to do enough in the face of this rising knowledge of climate change. Governments in Rhode Island are generally protected by the public duty doctrine, but as one Rhode Island Supreme Court noted, the doctrine, quote, verges on the brink of being a legal enigma because of its many exceptions. I would note that that second exception, the egregious conduct exception, it sort of looks like you have to prove the same elements of a negligence claim. So it's rather interesting that it's sort of set up as a barrier at first and then they've sort of opened themselves up to an exception that so long as you prove the elements of a negligence claim, you can still bring a claim. So ultimately liability will really depend on the specific facts and whether those exceptions apply. Okay, so property owners who don't wanna do this complicated dance around the barrier of sovereign immunity and whether some specific exception applies will at times go a different route and bring a takings claim under the Fifth Amendment or the state constitution. The Fifth Amendment of the constitution prohibits the federal government from taking private property for public use without just compensation. I'll never forget that ring. This extends to the states through the 14th amendment and also state constitutions often contain their own takings clause. Traditionally takings claims arise when the government acts in some way that impacts property rights, whether that's a permit decision, whether that's the government adopting a new zoning ordinance that has a deleterious impact or diminution in value of a property. But we're still in part one of my presentation. So we're talking about government in action, right? And so the reason I bring this up is because we're actually beginning to see takings claims arise out of scenarios where the government has failed to act. And I wanna talk about some of those. Don't worry, Thomas, I'm not talking about this case in detail. This is a bookmark. This is a fascinating case that we're so lucky to have a complete expert on this issue and case, and you'll be hearing from Thomas Rupert later about this case, but suffice it to say this is an example of a state takings claim arising out of a claim that the government had failed to properly maintain this shoreline road out to a homeowner's property. And the court ruled that in state court at least the government in action in the face of an affirmative duty to act can support a taking claim. And we have seen this level of state taking claim for inaction come out of state courts across the country, California, Minnesota. There's a pending case in Maryland right now. So this is a viable avenue in state court. On the contrary, in federal court we have seen a ginormous roadblock just in the last couple of months. There was a big flip of this case that many of us were watching. It's a case that arose out of Hurricane Katrina in New Orleans and the major flooding that occurred in the Lower Ninth District and St. Bernard Parish because of the Army Corps' maintenance and management of a large canal, the Mississippi River Gulf outlet, Mr. Go, it's sometimes called. The plaintiffs in this case originally tried to bring a negligence claim against the Army Corps for negligent maintenance of the Mr. Go. And they were hit with that sovereign immunity roadblock and the court ruled that the Army Corps was acting basically in a public duty manner and so they were immune to any kind of negligence suit. So what the plaintiffs did is they went around and filed a takings claim and said you Army Corps of Engineer by failing to maintain that canal and the flooding that result, it's a temporary taking of my property and you need to compensate me for it. But after flip-flopping once, the court recently ruled that actually the federal government cannot be held liable under a takings claim for inaction and they went into more detail of the kind of causation analysis that is required for any kind of takings claim against the federal government and there's a pretty big barrier in that the court basically said you need to take into account the benefit that the homeowner is getting from that levy or that canal or that flood barrier being there in the first place. So if the homes would have been flooded without that, it doesn't matter that it was negligently maintained because you need to factor in the fact that it was there in the first place and doing something for the homeowner to benefit them from flooding. So it definitely complicated the analysis of these kinds of claims against the federal government. Lastly for part one, I wanna talk about some statutory claims and this is just to show that there are existing state and federal laws that entities are using as a legal foothold to try and get climate adaptation action. The one that I'm gonna talk about is this ADA claim that was brought by a large group of New York residents with disabilities who claimed that under the Americans with Disabilities Act, the city has to provide equal access to all city services and that the city's emergency response plan was wholly inadequate and not providing equal access to city services to disabled people. This is a fascinating case that ended up on rolling out during Hurricane Sandy, actually. It was brought prior to Sandy but the judge was apparently writing the decision when Sandy struck and basically all the scenarios that unfurled during that disaster show was like a prima facie evidentiary case of how stranded many of the disabled people were in the city and how perfunctory the emergency response plan really was. This case ended up settling and the city had to completely revise their plan and make it much more robust and overall I think there were gains both in terms of the way that the plan reaches out to the disabled community but also other parts and components of the plan were updated in really great ways that made it a more resilient plan. I have another example on there. You can go back and revisit these slides but a clean water act example as well. Okay, so we're in part two which is where we're talking about claims that could arise from government acting trying to be proactive in the face of climate change but running into a barrier of either a developer or property owner disgruntled in some way by that action and I'm gonna walk through mostly this is gonna come in the context of taking claims but I did wanna highlight a really interesting case that just is percolating out of the city of Virginia Beach right now that many of you maybe have seen in the news and we'll talk through some of the interesting claims that are arising in that. So reminder where the Takings claim lives and the Rhode Island Constitution has its own provision and the world of government condemnation can be kind of complex. So I've got this outline that I'm just gonna walk you through briefly. There's two types of condemnation generally. There's the direct condemnation which is what many people refer to as eminent domain and this is where the government goes to a property owner and says, hey, we need your property to build Highway X or this railroad track across your property. We know we're taking your property. We're acknowledging that. Here's how much we have to give you. Okay, an inverse condemnation claim is called inverse because it's not the government going to the landowner and saying we're taking your property. It's the landowner suing the government and saying, hey, what you just did is essentially equating to taking my property and you need to pay me just compensation for it. We're gonna live in the world of inverse condemnation for the next couple of slides. Within that category, there are two kinds of specific takings. There's the physical taking which is where something that the government did is causing a physical occupation of your land like flooding where you cannot actually access your land. It's completely occupied by something. Versus a regulatory taking which is where it's just a regulation that is having the impact of your land losing value or you losing access to it in some way. And within the regulatory taking category, I promise this is the last, it's like a Babushka doll of condemnation. You have categorical takings which is the classic Lucas scenario where the regulation was so drastic that it rendered completely valueless your property. This is more rare than the scenario in number two where the regulation was overly severe in that it had a large impact but didn't completely devalue your property. In that scenario, courts will use what you may have recalled as the Penn Central analysis. They'll do an ad hoc inquiry of a couple of factors, the economic impact of the regulation, the reasonable investment backed expectations of the owner and also they'll look at the character of the government action. They'll look if the government was acting to enhance some kind of public good which is more in line with takings which if you recall is taking private property for a public purpose versus whether they were acting to prevent some public harm which sounds more like a municipality exercising its valid police powers which is different than eminent domain and does not require compensation. I'll note here in this asterisk that it's not condemnation that in and of itself is illegal, it's condemnation without compensation that's illegal. So we're gonna focus on A for a second here, physical taking, talk about an example case. This case is pretty recent, it rose out of Hurricane Harvey down in Texas and essentially what happened is the Army Corps had a flood control reservoir and knowing how much rainfall was gonna happen in Harvey they got nervous that the dam was getting too much pressure up against it and if that dam failed that the entire downtown of Houston and the Texas Medical Center and thousands of neighborhoods would be flooded. So what they did is they released a little bit of water from the reservoir and because of that release of water downstream properties were flooded.  They were stuck in a scenario where somebody had to get flooded and so they chose a smaller neighborhood to get flooded. This neighborhood then brought a class action suit against the Army Corps saying that you Army Corps used our property as federal floodwater storage and that is a public purpose and you need to compensate us for that. There is legal precedent for this kind of case, temporary takings claim for this kind of floodwater has been valid and granted before but what makes this case a little complicated is that a newspaper down in Texas did a public records request and found documents from decades ago showing that the Corps had actually done some analysis of this dam and the impact to downstream property owners if they were to release water and they knew exactly which properties were gonna flood and they decided that it was more worth having that risk than spending the money to upgrade the aging dam. So it'll be really interesting to see how this case works its way through the courts and how the courts come down. Moving on to B which is the regulatory taking as opposed to physical taking. I found this great chart from someone from the Rhode Island Attorney General's Office that I'm not gonna walk through but I just included as a reference for you all going back into the slides because again this is kind of a complicated set of pathways and this is a good diagram to reference but I like to talk about things in stories because I find those more memorable. So I have a case here where the court decided that a regulation was a taking and then I'm gonna talk about a case where a regulation was not a taking. This is a Rhode Island case where the local town decided that they wanted to adopt a zoning ordinance creating a high flood danger district that would preclude anyone from building any single family dwelling on the land and the question was did this result in a viable inverse condemnation claim? Basically there was a plaintiff that owned a piece of property there and wanted to build her home and she no longer could as a result of this regulation and the court came back and said yes, this is a scenario where you do have to compensate the landowner because the result of this regulation was to render her property completely useless. Even though the way that the high flood danger district allowed uses were drafted, there were some allowed uses beyond the prohibition of single family dwellings like having a golf course or an orchard or a large agricultural operation but because of the size of this woman plaintiff's land, none of those were feasible for her property so the end result was that her property had been rendered useless as the court noted. The court also looked at, if you can recall back a couple of slides I talked about the character of the government action and the court here noted that really the primary purpose of this zoning ordinance according to the language of it was to preserve barrier beaches and it was sort of characterized by the court as an environmental goal as opposed to a public health and safety goal and I note this because that sort of put it into the public good category that more so is it taking as opposed to the category of preventing some public harm which is more police powers category. In this case where a regulation was not taking in contrast, you'll see that the way that the zoning regulation was worded was much more oriented towards a public safety lens. Here it was in Massachusetts, you had a small town that adopted a coastal conservancy flood district and they noted that the purpose of it was to reduce risk to people and property from extreme high tides and the rising sea level. Specifically I think they mentioned the fact that they were protecting the emergency response personnel from having to go into those areas when they do get flooded. So there was a real lens of public safety and I think that played into the court's analysis. Also it happened that the land wasn't rendered completely useless because of the size of it and the allowed uses that were still relevant to that property and I just included a couple of other Rhode Island cases at the bottom here where courts have deemed that it is a fair exercise of the municipality's police power to protect wetlands, to protect water quality and so it is this sort of delicate balance between police powers versus eminent domain exercise. I really felt that this quote was pretty relevant to the conversation. It's an acknowledgement by the Rhode Island Supreme Court that this notion of a municipality's police power is dynamic and that as our understanding and scientific knowledge increases about certain harms that society has to be able to guard against those newly perceived dangers and we have to adjust accordingly and it's almost like this was written with climate change in mind but this was a 1981 case so probably not but it could be applied in this situation. Finally I wanna wrap up talking about this interesting case out of the city of Virginia Beach that many of us are watching because it's kind of the exact scenario that we're afraid of where a city council had an application for a rezoning and they denied it because the applicant had not properly analyzed sea level rise and other climate change conditions in their application and we so badly want this to work out and we wanna empower city councils to be able to do that and so this lawsuit's a little bit scary because they got sued by the developer for denying their rezoning application but when you dig into it which we're gonna do for the next couple of minutes it's not as bad as it looks on the outset. So the facts here, it was a developer that wanted to develop, I think it was about 50 acres of land. They weren't proposing to develop all of it but a portion of it they were putting single family residential homes and they applied for their permit back in 2016 and the city council didn't end up making their decision until 2018 and in those interim two years the city council was getting all of these presentations about how climate change was gonna be devastating and all of the impacts that they were gonna need to be preparing for and they started coming up with some ad hoc factors that they wanted the developer to show. They said, actually it'd be really great if you could talk about your stormwater system and how it could handle 1.5 feet of sea level rise scenario and there was a list of about 10 other ad hoc factors and ultimately they denied the application citing specifically that the ingress and egress to the property was routinely flooded and they were concerned about that. This is a photo of Princess Anne Road which is the only road leading to the development that was flooded and that they had failed to analyze the 1.5 sea level rise scenario. The developer had three specific counts in their complaint. The first one was that the city council had acted arbitrarily, capriciously, unreasonable in violation of the APA and specifically they were saying it was arbitrary for you to deny our permit because there was another developer who applied for a similar rezoning application right across the street from us in the same exact year and you gave it to them and you didn't give it to us and they specifically laid out some allegations of personal animus on the city council that one council member had had it out for them and so they said it was arbitrary. They also said it was unreasonable because these were ad hoc requirements that the city council had kind of come up with in an informal fashion and that they were outside of what the law actually required them to do. So they asserted that they were in compliance with the law and these were these random factors that the city was trying to impose on them. The other claim they brought was an equal protection claim under the US Constitution. Again, going back to hey, you gave it to this other developer and you didn't give it to us and the third thing they said was an ultra V-Race claim which is you're acting outside of your authority and what they alleged and I'm going off of the complaint here is that the city could have come up with more stringent stormwater requirements like considering 1.5 feet of sea level rise but they had to follow this stringent protocol. This is a Dillon rule state so the municipality only has the authority that is given to them in the constitution and there was a specific protocol that they had to pursue that allegedly they did not follow. So I do wanna say that nothing that the developer is saying is attacking what the city council was trying to require from a substance perspective. They weren't saying you have no right to ask us about future impacts to this site from climate change. It was very process oriented. It was like maybe you could have asked us that but you didn't follow the right process and you didn't do it in a fair way. Okay so wrapping up all of that into one conclusory slide. Climate related hazards are becoming increasingly foreseeable and predictable and both of those things play into the fact that the duty of governments to protect against those harms is rising. Takings claims for inaction may arise at the state level where we've already seen them arise where an affirmative duty to act exists but those kinds of claims are unlikely to succeed at the federal level and courts generally uphold restrictive regulations when they're in the interest of protecting public health and safety in some way which many adaptation measures are if they're worded in the right way and the Virginia Beach case highlights the need for a fair transparent transition in regulating developments in the face of climate change. So we'll wrap it up there. Thank you. I think we have like 10 minutes. Yeah we have about 10 or 15 minutes so I'm sure there's gonna be a lot of questions for this. We have a resident microphone runner so just raise your hand if you have a question. Yes thank you. A little catch 22 dilemma I have. I run the local sewer department. We should see three million gallons going through daily. Right now we got 12 million gallons and state and EPA is mandating we do something. So if I was able to stop that nine million extra coming in that would be on the storm system and we have flooding problems as it is. So it's a catch 22. I might get my job done but now the director of public works is gonna be flooded out and he's gonna have those people the ones nearest us and then like 2010 basements flooded with sewage water. So we are now doing a drainage project because of all that water and that project has taken us to a side street and I asked for a access road to go there and the neighborhood was all up in arms, stopped it. That would give us an extra seven feet of height because we're right there at the flood stage. So we got a significant storm. We won't be able to get to our facility and get the equipment that'll help out the rest of the town. Should we have fought it? Gotten the land by, you know I forget the, yeah, to say, so down the road what liability have we got? If we don't stop that extra flow coming in the INI and the neighborhood around the facility gets flooded out with sewage but if we fix it then other neighborhoods throughout town because the storm system can't handle it is gonna get flooded. Seems like a catch 22 would be the best course of action. That's a question for your lawyer. But I mean, you've identified that unfortunately a lot of the specific scenarios that come up do present catch 22s and I think it's why comprehensive planning and bringing in communities and working out priorities is so important because you get the resilient island problem if only one entity is, as you said if you fulfill your duties that means that there's gonna be backed up sewage basements across the town. So the need for comprehensive action is so important in this context and I mean I don't have a panacea for you and I can't answer your question specifically but to acknowledge you're not alone those catch 22s are presenting themselves all over the place. What do you see in terms of equity in the analysis that courts are going through? What are they saying? So my problem is this, coastal communities tend to have very expensive real estate that is at risk on the shore and it tends to have much lower priced real estate inland. The investments that have to be made to protect shoreline real estate are expensive. So figuring out how to do equity and make the improvements in the current environments hard I don't wanna be taxing poor people to pay for recreational home protection on the shoreline. I wanna figure out how to make sure that the folks who are benefiting realize that they've gotta pay for that benefit. The courts seem to be not all that noisy on this side of it. Any thoughts or observations there? I would agree with you that it doesn't seem to be an issue that courts are taking on. It seems like it's more in the public policy realm. I mean Boston in particular is facing this problem. We're talking a lot about how much public money was actually poured into cleaning up Boston Harbor and now you have all of these private developers capitalizing on that. So it was like across the state tax dollars went into cleaning up the harbor and now developers are coming in and wanting to develop and box out the very public that paid for all of that cleanup work. And I'd say it's not really coming out in terms of an equitable solution in the courts and it's more in the public policy world. Yeah, I mean this isn't directly an answer to your question because as Alina said courts haven't really dealt with this issue yet and it doesn't really speak to the equity component but I do think that we've seen a trend in some of these cases where the court has recognized the public benefit that those homeowners are receiving from the projects that the governments are doing and the best example of that is probably a case that came after Hurricane Sandy in New Jersey when dunes were wiped out across the beach and the state came in and said we wanna do a restoration project. They weren't asking the homeowners to pay for the restoration project but they wanted to get an easement across those properties to do it and some of the homeowners brought it to the takings claim because they felt like they weren't being fairly compensated and when that case went to trial the judge instructed the jury to take into consideration in their cost benefit analysis the benefit to that homeowner of the restoration project and so the compensation that the state ended up owing that homeowner was a dollar. So that's some promising that that's kind of how those cases would be looked at. I'm curious when a case goes to the court like for instance the 1983 thing in South Kingston where people were allowed to the courts said no that you were allowed to develop that property. What happens then is the town required to maintain access to that property even though they lost in the courts? Hopefully Thomas will address those kinds of issues later this morning about infrastructure and sea level rise but I have not personally followed up on this particular case but that's kind of a different issue in terms of liability of this is more about how can you regulate the land use on a specific property. The matter of what your obligations are to provide infrastructure to that are a little bit different but in general towns do have a pretty big burden to provide access to roads. But Thomas is much more of an expert on that so I will defer to him to address your question further later. Are these slides available on your website? Yes. The presenters are willing. Presenters are willing that's good and how are you coming with an update to this which is excellent by the way. We'd like to. Yeah we'd like to. That took about a year and a half of research and we are starting to do more research. Some of the cases that I talked about here for example new cases that are arising that we would write about in a future publication. Well first of all thank you for this work. It's super important and I think what you said earliest about the static versus dynamic situation we're now facing and our legal statutory frameworks are all about static. They're slow, they're precedent built. Even all the work we did at EPA we tried to move things towards watersheds and watershed management but it's very challenging to do that. So then the question is are there places where people are looking at a big reset statutorily, legislative commissions, others who are going to sit down and say you know we gotta rethink this totally. I mean totally like the Clean Water Act doesn't have the word sustainability in it. Or alternative visions about how it could have been implemented need to come forward because Rhode Island's most of its watersheds are paid by at least 20, 30%. That's unsustainable.  We need to be thinking about restoring the function of watersheds not necessarily raising, trying to make a wastewater plant more resilient which in fact it never will be based on what we'll see by 2100. We gotta come to big questions that aren't really being, really can't be answered by courts. And the question is whether the legislatures are starting to engage at the state level because we don't have much hope at the federal level right now. So where are we going? Do you see that happening anywhere? Any state, maybe Oregon? I think we are starting to see it percolate a little bit at state legislatures. Part of what I'm reading between the lines and what you're saying is when are we gonna start talking about retreat instead of maybe necessarily reinforcing all of our structures and trying to. The term of the very thoughtful campaign talks about 21st century infrastructure instead of 20th century infrastructure. The vision for 21st century infrastructure which is gonna be very different because it needs to change. It needs to be a dynamic. It needs to build a way to our plan to open that 40 year life and then it's not. So it seems like here a completely different set of understanding how we have to operate. Yeah, I think my sense, especially coming from Massachusetts is that because there's so many different levels of government involved in that and there are all of these kind of archaic regulatory systems in place that don't necessarily make it easy for us to insert, you know, assessment of climate risks. The governments are grappling with this issue quite a bit and the result has been a focus both legislatively and regulatoryly on process and on planning. And so like in Massachusetts, we passed last session a huge environmental bond bill that codified a lot of these things that our governor had tried to do through an executive order that requires us to have a statewide plan, that requires us to have statewide projections. But it doesn't really go that extra mile yet in requiring agencies to take affirmative action. It requires agencies to assess the climate risks to their assets. It requires them to look at all their regulations and see where they might be defunct in the face of climate change. But it doesn't require affirmative action. And I think the barrier that we're seeing is that governments don't quite know how that's gonna play out and they don't feel comfortable yet kind of requiring it. And so that's kind of where we've stalled. And I haven't personally seen any legislatively anything happen in the US that has been, you know, really kind of altering or, you know, great yet. That's true. Yeah. I mean, I think more and more, this is an opportunity for states to rethink their state level regulatory frameworks and think more about adaptive management and permit re-openers and other tools to basically try and bring a flair of dynamicness to their permit process so that it is not as static. Unfortunately, a lot of Nipty's permits are just renewed without being revisited at their five-year term life. And, you know, doing more re-openers is just one example I can think of. So we're in the process of putting together a toolkit for municipalities with some ideas of how to manage with adaptation in mind, but because it's kind of something, again, that they're grappling with. I don't have a good success story yet. We are going to be around at lunch so you can find us. And in the final panel, answering breakout sessions, there are plenty of opportunities. Thank you. Can you describe any examples of rolling easements which have been successful in New England or are there any examples of rolling easements in New England either proposed or passed? And rolling easements includes a wide range of measures. That's a great question. I hope that ladies from the panel this afternoon from Georgetown will know the answer to that question because they're much more up on national best practices. And I know of some, but they're not in New England, and maybe they will know of some examples in New England. So let's save that for this afternoon's panel. We will cue them with that question, but they do have a section of their talk that's gonna be all about managed retreat. Thank you to our speakers from the Conservation Law Foundation. We are going to take a 15-minute break, so please be back here at 11.15 and just to get ahead of a couple questions I think we're gonna get more of, we will make presentations available online. And if you came in late today, we do have a video recording of this morning that will be available to you for later. Thank you.


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