Climate Change Law and Policy Project
Produced by Prof. Edward Richards, Visit the project’s website
Fort St. Philip Natural Diversion and the Destruction of Land
Pictorial Account and Landscape Evolution of the Crevasses near Fort St. Philip, Louisiana (Rotated Maps – Port St. Phillip crevasse study)
Factsheet – Pictorial Account and Landscape Evolution of the Crevasses near Fort St. Philip, Louisiana
This report documents how a natural diversion – a break in the river levee – lead to significant land loss, not land gain.
“Quantifying the effects of active natural and constructed crevasses is critical to the planning and success of future ecosystem restoration activities. This document provides a historical overview of landscape changes within the vicinity of the natural crevasses near Fort St. Philip, Louisiana. A significant event influencing landscape change within the Fort St. Philip study area was the breaching of the eastern levee of the Mississippi River. Initially, the river water that was diverted through these crevasse channels physically removed significant marsh areas within the study area. These initial direct impacts were succeeded by several decades of larger regional loss patterns driven by subsidence and other episodic events (e.g, hurricanes and floods), and recent localized land gains. These increases in land area are potentially the long-term results of the Fort St. Philip crevasses, and the short-term impacts of delta management activities. However, for the majority of the 1956-2008 period of analysis, the crevassing of the eastern bank of the Mississippi River levee was a loss accelerant in the Fort St. Philip area.”
FHA establishes standards for private flood insurance for FHA backed mortgages
Acceptance of Private Flood Insurance for FHA-Insured Mortgages
This final rule amends Federal Housing Administration (FHA) regulations to allow mortgagors the option to purchase private flood insurance on FHA-insured mortgages for properties located in Special Flood Hazard Areas (SFHAs), in satisfaction of the mandatory purchase requirement of the Flood Disaster Protection Act of 1973 (the FDPA). The FDPA, as amended, requires the owner of a property mapped in a SFHA, and located in a community participating in the National Flood Insurance Program, to purchase flood insurance as a condition of receiving a mortgage backed by the Government Sponsored Entities (GSEs), Department of Veterans Affairs (VA), U.S. Department of Agriculture (USDA), or Federal Housing Administration (FHA). In consideration of public comments, HUD’s experience implementing the program, and HUD’s goals of aligning with the Biggert-Waters Act while mitigating risk and protecting taxpayers’ funds, this final rule adopts HUD’s November 23, 2020, proposed rule with minor changes.
Baked-In Sea Level Rise
Beaches and Sea Level Rise
The Science of Waves on Water – Physics of an Ocean Wave
“The Beaches Are Moving” is a 60-minute documentary that focuses on North Carolina’s barrier islands. It describes common beach processes, as well as processes that are unique to the barrier island system. Produced in 1983 by UNC-TV, this documentary focuses on the work of Duke marine geologist Orrin H. Pilkey Jr.
Hernandez, M., S. Scarr, and K. Daigle. “The messy business of sand mining explained.” (2021).
Public Trust Guiding Principles and Action Plan: Carrying out the California Coastal Act and Public Trust Doctrine in an era of climate crisis and sea level rise (June 2022)
Carter, Nicole T., and Eva Lipiec. Flood Risk Reduction From Natural and Nature-Based Features: Army Corps of Engineers Authorities. Washington, DC: Congressional Research Service, 2020.
Flournoy, A.C., 2017. Beach Law Cleanup: How Sea-Level Rise Has Eroded the Ambulatory Boundaries Legal Framework. Vt. L. Rev., 42, p.89.
Hurricane Harvey Takings Cases
Federal Circuit finds that downstream plaintiffs can state a takings case in the downstream Hurricane Harvey flooding cases:
Milton v. United States, 36 F.4th 1154 (Fed. Cir. 2022)
This is based on finding a property interest in a flowage easement through the plaintiff’s property. By calling this a property interest, the Court eliminates the 702 defense from the FTCA and maybe the discretionary function defense of the FTCA, depending on whether the Court of Federal Claims finds that this meets the test of Arkansas Game and Fish for a temporary taking.
In re Downstream Addicks, 147 Fed. Cl. 566 (2020), rev’d and remanded sub nom. Milton v. United States, No. 2021-1131, 2022 WL 1788793 (Fed. Cir. June 2, 2022)
In re Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, 146 Fed. Cl. 219 (2019)
Coastal home buyers are ignoring rising flood risks, despite clear warnings and rising insurance premiums
US Energy Independence
Oyster Takings Claims
Campo v. United States, No. 20-44, 2021 WL 6102151 (Fed. Cl. Dec. 23, 2021)
[For a good discussion of the Louisiana law on property interests in oyster leases, see: John J. Costonis, Avenal v. State: Takings and Damagings in Louisiana, 65 La. L. Rev. (2005)]
Just handed down by the Court of Federal Claims. Denial of SJ on plaintiffs’ claims that the Corps took their property by operating the Bonne Carre spillway. The state SC kicked the same type of claims some years ago because they only lease the land from the state and the lease makes it clear that they do not have a continuing property interest.
“In his 1690 Second Treatise of Government, John Locke famously noted “the labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.” Over 300 years later, this case raises the unique legal issue of whether Louisiana oyster growers may claim property rights in the fruits of their labor-oysters.
Plaintiff oyster farmers allege the United States deprived them of use, occupancy and enjoyment of their personal oyster stock and real property (oyster beds and reefs). The farmers allege the government actions resulted in a permanent taking of their property for a public use without payment of just compensation in violation of the Takings Clause of the United States Constitution. The government admits when plaintiffs sell oysters they are “paid for the fruits of [their] effort,” and plaintiffs may assert rights to exclude, destroy, use, possess, recover for larceny, alienate, sue third parties for damages, and enjoy the fruits of selling oysters. Despite acknowledging those rights, the government moves to dismiss the portion of plaintiffs’ claim alleging a taking of the oysters; the government argues plaintiff farmers lack a compensable property right in the oysters. For myriad reasons detailed infra, under Louisiana precedent, federal common law, and Lockean labor theory, plaintiffs undoubtedly have compensable property rights in their oysters. Accordingly, the Court DENIES the government’s motion to dismiss in part pursuant to Rule 12(b)(6) of the Court of Federal Claims.”
Cartoon of climate change timeline
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BP P.L.C. v. Mayor and City Council of Baltimore
This is a climate case based on public nuisance and misrepresentation. Defendants removed to federal court under the federal officer statute and the Circuit sent it back. Defendants appealed to the USSC, which accepted cert. and rule that when the federal officer statute was triggered, the appeals court had a duty to remand to consider all grounds for removal.
Scotus Blog – Case preview: Justices to consider procedural issue in major climate-change lawsuit
FEMA Strategic Plans
FEMA Strategic Plan 2014–2018 – Obama Administration, mentions climate 8 times.
FEMA Strategic Plan 2018–2033 – Trump Administration, mentions climate 0 times.
FEMA Strategic Plan 2022–2618 – Biden Administration, mentions climate 93 times.
Mitigation Banking and Offsets – Bad Science and Failed Policy
Office, U.S.G.A., on Transportation, U.S.C.H.C. & Infrastructure, 2005. Wetlands Protection: Corps of Engineers Does Not Have an Effective Oversight Approach to Ensure that Compensatory Mitigation is Occurring: Report to the Ranking Democratic Member, Committee on Transportation and Infrastructure, House of Representatives, GAO.
Braun, K.N. & Theuerkauf, E.J., 2021. The role of short-term and long-term water level and wave variability in coastal carbon budgets. Iscience, 24(5), p.102382.
Burgin, S., 2010. “Mitigation banks” for wetland conservation: a major success or an unmitigated disaster? Wetlands ecology and management, 18(1), pp.49–55.
Newling, C.J., Landin, M.C. & others, 1985. Long-term monitoring of habitat development at upland and wetland dredged material disposal sites, 1974-1982.
Kusler, J. & Kentula, M., 1989. Wetland creation and restoration: the status of the science. v. 1. Regional reviews-v. 2. Perspectives. EPA-600/3-(USA). no. 89/038a-b.
Alagood, R.K., 2016. The Mythology of Mitigation Banking. Environmental Law Reporter, 46, pp.10200–10207.
Turner, R.E., Redmond, A.M. & Zedler, J.B., 2001. Count it by acre or function—mitigation adds up to net loss of wetlands. National Wetlands Newsletter, 23(6), pp.5–6.
Boyer, M.E., 1997. The effect of long-term marsh management on land-loss rates in coastal Louisiana. Environmental Management, 21(1), pp.97–104.