-
Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future
-
Summary: This report surveys existing law for legal issues that have arisen, or may arise in the future, on account of climate change and government responses thereto. At the threshold of many climate-change-related lawsuits are two barriers—whether the plaintiff has standing to sue and whether the claim being made presents a political question. Both barriers have forced courts to apply amorphous standards in a new and complex context. Efforts to mitigate climate change—that is, reduce greenhouse gas (GHG) emissions—have spawned a host of legal issues. The Supreme Court resolved a big one in 2007: the Clean Air Act (CAA), it said, authorizes EPA to regulate GHG emissions. EPA’s subsequent efforts to carry out that authority have been sustained by the D.C. Circuit. Another issue is whether EPA’s “endangerment finding” for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions from other sources, and, if EPA does, whether the CAA authorizes cap- and-trade programs. Still other mitigation issues are (1) the role of the Endangered Species Act in addressing climate change; (2) how climate change must be considered under the National Environmental Policy Act; (3) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions to control GHG emissions; and (5) whether the public trust doctrine applies to the atmosphere. Liability for harms allegedly caused by climate change has raised another crop of legal issues. The Supreme Court decision that the CAA bars federal judges from imposing their own limits on GHG emissions from power plants has led observers to ask: Can plaintiffs alleging climate change harms still seek monetary damages, and are state law claims still allowed? The two rulings so far say no to the former, but split on the latter. Questions of insurance policy coverage are also likely to be litigated. Finally, the applicability of international law principles to climate change has yet to be resolved.Water shortages thought to be induced by climate change likely will lead to litigation over the nature of water rights. Shortages have already prompted several lawsuits over whether cutbacks in water delivered from federal projects effect Fifth Amendment takings or breaches of contract. Sea level rise and extreme precipitation linked to climate change raise questions as to (1) the effect of sea level rise on the beachfront owner’s property line; (2) whether public beach access easements migrate with the landward movement of beaches; (3) design and operation of federal levees; and (4) government failure to take preventive measures against climate change harms. Other adaptation responses to climate change raising legal issues, often property rights related, are beach armoring (seawalls, bulkheads, etc.), beach renourishment, and “retreat” measures. Retreat measures seek to move existing development away from areas likely to be affected by floods and sea level rise, and to discourage new development there.
Natural disasters to which climate change contributes may prompt questions as to whether response actions taken in an emergency are subject to relaxed requirements and, similarly, as to the rebuilding of structures destroyed by such disasters just as they were before. Finally, immigration and refugee law appear not to cover persons forced to relocate because of climate change impacts such as drought or sea level rise.
Located in
Resources
/
Climate Science Documents
-
Adapting to flood risk under climate change
-
Flooding is the most common natural hazard and third most damaging globally after storms and earthquakes. Anthropogenic climate change is expected to increase flood risk through more frequent heavy precipitation, increased catchment wetness and sea level rise. This paper reviews steps being taken by actors at international, national, regional and community levels to adapt to flood risk from tidal, fluvial, surface and groundwater sources. We refer to existing inventories, national and sectoral adaptation plans, flood inqui- ries, building and planning codes, city plans, research literature and international policy reviews. We dis- tinguish between the enabling environment for adaptation and specific implementing measures to manage flood risk. Enabling includes routine monitoring, flood forecasting, data exchange, institutional reform, bridging organizations, contingency planning for disasters, insurance and legal incentives to reduce vulner- ability. All such activities are ‘low regret’ in that they yield benefits regardless of the climate scenario but are not cost-free. Implementing includes climate safety factors for new build, upgrading resistance and resilience of existing infrastructure, modifying operating rules, development control, flood forecasting, temporary and permanent retreat from hazardous areas, periodic review and adaptive management. We identify evidence of both types of adaptation following the catastrophic 2010/11 flooding in Victoria, Australia. However, signif- icant challenges remain for managing transboundary flood risk (at all scales), protecting existing property at risk from flooding, and ensuring equitable outcomes in terms of risk reduction for all. Adaptive management also raises questions about the wider preparedness of society to systematically monitor and respond to evol- ving flood risks and vulnerabilities.
Keywords
adaptation, climate change, flood, natural hazards, risk, Victoria, vulnerability
Located in
Resources
/
Climate Science Documents
-
Developing a broader scientific foundation for river restoration: Columbia River food webs
-
Well-functioning food webs are fundamental for sustaining rivers as ecosystems and maintaining associated aquatic and terrestrial communities. The current emphasis on restoring habitat structure—without explicitly considering food webs—has been less successful than hoped in terms of enhancing the status of targeted species and often overlooks important constraints on ecologically effective restoration. We identify three priority food web-related issues that potentially impede successful river restoration: uncertainty about habitat carrying capacity, proliferation of chemicals and contaminants, and emergence of hybrid food webs containing a mixture of native and invasive species. Additionally, there is the need to place these food web considerations in a broad temporal and spatial framework by understanding the consequences of altered nutrient, organic matter (energy), water, and thermal sources and flows, reconnecting critical habitats and their food webs, and restoring for changing environments. As an illustration, we discuss how the Columbia River Basin, site of one of the largest aquatic/riparian restoration programs in the United States, would benefit from implementing a food web perspective. A food web perspective for the Columbia River would complement ongoing approaches and enhance the ability to meet the vision and legal obligations of the US Endangered Species Act, the Northwest Power Act (Fish and Wildlife Program), and federal treaties with Northwest Indian Tribes while meeting fundamental needs for improved river management.
Located in
Resources
/
Climate Science Documents
-
A globally coherent fingerprint of climate change impacts across natural systems
-
Causal attribution of recent biological trends to climate change is complicated because non-climatic influences dominate local, short-term biological changes. Any underlying signal from climate change is likely to be revealed by analyses that seek systematic trends across diverse species and geographic regions; however, debates within the Intergovernmental Panel on Climate Change (IPCC) reveal several definitions of a ‘systematic trend’. Here, we explore these differences, apply diverse analyses to more than 1,700 species, and show that recent biological trends match climate change predictions. Global meta-analyses documented significant range shifts averaging 6.1 km per decade towards the poles (or metres per decade upward), and significant mean advancement of spring events by 2.3 days per decade. We define a diagnostic fingerprint of temporal and spatial ‘sign-switching’ responses uniquely predicted by twentieth century climate trends. Among appropriate long-term/large-scale/multi-species data sets, this diagnostic fingerprint was found for 279 species. This suite of analyses generates ‘very high confidence’ (as laid down by the IPCC) that climate change is already affecting living systems.
Located in
Resources
/
Climate Science Documents
-
Ecological and Evolutionary Responses to Recent Climate Change
-
Ecological changes in the phenology and distribution of plants and animals are occurring in all well-studied marine, freshwater, and terrestrial groups. These observed changes are heavily biased in the directions predicted from global warming and have been linked to local or regional climate change through correlations between climate and biological variation, field and laboratory experiments, and physiological research. Range-restricted species, particularly polar and mountaintop species, show severe range contractions and have been the first groups in which entire species have gone extinct due to recent climate change. Tropical coral reefs and amphibians have been most negatively affected. Predator-prey and plant-insect interactions have been disrupted when interacting species have responded differently to warming. Evolutionary adaptations to warmer conditions have occurred in the interiors of species’ ranges, and resource use and dispersal have evolved rapidly at expanding range margins. Observed genetic shifts modulate local effects of climate change, but there is little evidence that they will mitigate negative effects at the species level.
Located in
Resources
/
Climate Science Documents
-
Continuous flux of dissolved black carbon from a vanished tropical forest biome
-
Humans have used fire extensively as a tool to shape Earth’s vegetation. The slash-and-burn destruction of Brazil’s Atlantic forest, which once covered over 1.3 million km2 of present-day Brazil and was one of the largest tropical forest biomes on Earth1, is a prime example. Here, we estimate the amount of black carbon generated by the burning of the Atlantic forest, using historical records of land cover, satellite data and black carbon conversion ratios. We estimate that before 1973, destruction of the Atlantic forest generated 200–500 million tons of black carbon. We then estimate the amount of black carbon exported from this relict forest between 1997 and 2008, using measurements of polycyclic aromatic black carbon collected from a large river draining the region, and a continuous record of river discharge. We show that dissolved black carbon (DBC) continues to be mobilized from the watershed each year in the rainy season, despite the fact that widespread forest burning ceased in 1973. We estimate that the river exports 2,700 tons of DBC to the ocean each year. Scaling our findings up, we estimate that 50,000–70,000 tons of DBC are exported from the former forest each year. We suggest that an increase in black carbon production on land could increase the size of the refractory pool of dissolved organic carbon in the deep ocean.
Located in
Resources
/
Climate Science Documents
-
Enhanced poleward moisture transport and amplified northern high-latitude wetting trend
-
Observations and climate change projections forced by greenhouse gas emissions have indicated a wetting trend in northern high latitudes, evidenced by increasing Eurasian Arctic river discharges (1–3). The increase in river discharge has accelerated in the latest decade and an unprecedented, record high discharge occurred in 2007 along with an extreme loss of Arctic summer sea-ice cover (4–6). Studies have ascribed this increasing discharge to various factors attributable to local global warming effects, including intensifying precip- itation minus evaporation, thawing permafrost, increasing greenness and reduced plant transpiration7–11. However, no agreement has been reached and causal physical processes remain unclear. Here we show that enhancement of poleward atmospheric moisture transport (AMT) decisively contributes to increased Eurasian Arctic river discharges. Net AMT into the Eurasian Arctic river basins captures 98% of the gauged climatological river discharges. The trend of 2.6% net AMT increase per decade accounts well for the 1.8% per decade increase in gauged discharges and also suggests an increase in underlying soil moisture. A radical shift of the atmospheric circulation pattern induced an unusually large AMT and warm surface in 2006–2007 over Eurasia, resulting in the record high discharge.
Located in
Resources
/
Climate Science Documents
-
A paradigm shift in understanding and quantifying the effects of forest harvesting on floods in snow environments
-
A well-established precept in forest hydrology is that any reduction of forest cover will always have a progressively smaller effect on floods with increasing return period. The underlying logic in snow environments is that during the largest snowmelt events the soils and vegetation canopy have little additional storage capacity and under these conditions much of the snowmelt will be converted to runoff regardless of the amount or type of vegetation cover. Here we show how this preconceived physical understanding, reinforced by the outcomes of numerous paired watershed studies, is indefensible because it is rationalized outside the flood frequency distribution framework. We conduct a meta-analysis of postharvest data at four catchments (3–37 km2) with moderate level of harvesting (33%–40%) to demonstrate how harvesting increases the magnitude and frequency of all floods on record (19–99 years) and how such effects can increase unchecked with increasing return period as a consequence of changes to both the mean (þ11% to þ35%) and standard deviation (12% to þ19%) of the flood frequency distribution. We illustrate how forest harvesting has substantially increased the frequency of the largest floods in all study sites regardless of record length and this also runs counter to the prevailing wisdom in hydrological science. The dominant process responsible for these newly emerging insights is the increase in net radiation associated with the conversion from longwave-dominated snowmelt beneath the canopy to shortwave-dominated snowmelt in harvested areas, further amplified or mitigated by basin characteristics such as aspect distribution, elevation range, slope gradient, amount of alpine area, canopy closure, and drainage density. Investigating first order environmental controls on flood frequency distributions, a standard research method in stochastic hydrology, represents a paradigm shift in the way harvesting effects are physically explained and quantified in forest hydrology literature.
Located in
Resources
/
Climate Science Documents
-
Density stratification in an estuary with complex geometry: Driving processes and relationship to hypoxia on monthly to inter-annual timescales
-
The density field in Narragansett Bay (NB), a northeast U.S. estuary with complex geometry that suffers hypoxia, is described and related to driving factors using monthly means from time series observations at 9 sites during late spring to early fall 2001–2009. Stratification (deep-shallow density difference) is dominated by salinity and strongest (4–7 kg m␣3 in late spring) near rivers in the north and east. Shallow horizontal density gradients are about 0.2 kg m␣3 km␣1; deep densities have minor spatial and seasonal variations. Geographic structure in density, and its inter-annual anomalies, is weaker than expected based on the complex geometry and large size relative to the internal deformation radius. Inter-annual variability is primarily driven by river flow and weakly influenced by winds, contrasting nearby systems (Chesapeake Bay, Long Island Sound), likely due to reduced fetch and/or unfavorable alignment with prevailing winds. Stratification response to river flow follows 2/3 power scaling despite that the theory omits important NB attributes (complex geometry, depth-varying horizontal gradients). Contrasting other systems (Delaware Bay, San Francisco Bay), horizontal gradients are at least as responsive to river forcing as theoretical 1/3 power scaling; depth-dependent horizontal gradients or finite basin constraint of intrusion length may be responsible. Bay-wide inter-annual variations in seasonal hypoxia correlate with late spring stratification, though stratification peaks in the north and east with hypoxia most severe in the north and west. Long-term response of stratification, and thus its role in hypoxia, to climate-driven increases in river flow and temperatures will be dominated by the former.
Located in
Resources
/
Climate Science Documents
-
Changes in winter precipitation extremes for the western United States under a warmer climate as simulated by regional climate models
-
We find a consistent and statistically significant increase in the intensity of future extreme winter precipitation events over the western United States, as simulated by an ensemble of regional climate models (RCMs) driven by IPCC AR4 global climate models (GCMs). All eight simulations analyzed in this work consistently show an increase in the intensity of extreme winter precipitation with the multi-model mean projecting an area-averaged 12.6% increase in 20-year return period and 14.4% increase in 50-year return period daily precipitation. In contrast with extreme precipitation, the multi-model ensemble shows a decrease in mean winter precipitation of approximately 7.5% in the southwestern US, while the interior west shows less statistically robust increases.
Located in
Resources
/
Climate Science Documents
