Friday, November 7, 2014

IPCC Response #4: Responding to Imminent Risks and Present Harms

Some unique and threatened systems, including ecosystems and cultures, are already at risk from climate change (high confidence).

Climate-change-related risks from extreme events, such as heat waves, extreme precipitation, and coastal flooding, are already moderate (high confidence).

Risks are unevenly distributed and are generally greater for disadvantaged people and communities in countries at all levels of development.[1]

These quotations come from three of the five “reasons for concern” identified by the IPCC as “starting point[s] for evaluating dangerous anthropogenic interference with the climate system.”[2] In a report that understandably focuses much attention on the heightened probability and magnitude of harm associated with further warming in the future, the risks identified in the first two quotations stand out because they already exist. Some communities, including coastal villages in the Arctic and small island states, are already facing threats to their very existence. In addition, the risks associated with extreme weather events are widespread and already here. When these risks are considered alongside the reality that they are “unevenly distributed” and “generally greater for disadvantaged people,” they present policy questions not only about long-term adaptation planning, but also about immediate disaster response and aid.

In cases where communities are under serious threat from coastal erosion and sea-ice melt, the threat is imminent and the costs are steep. For example, in 2003, the U.S. Government Accountability Office (GAO) reported that coastal erosion and flooding had affected 184 of 213 Alaska Native communities.[3] In 2009, the GAO reported that 31 Native villages face “imminent threats” and that 12 of the 31 villages had decided to relocate or consider partial or complete relocation.[4] Given the rapid rate of warming in the Arctic, the number of villages facing an imminent threat is likely higher today than it was in 2009. 

These threats result in real and quantifiable current costs. In 2006, the U.S. Army Corps of Engineers estimated the costs of relocating the Alaska Native Village of Newtok at $80 to $130 million.[5] Estimates of the costs to relocate other villages are either comparable or much higher. For example, it could cost as much as $400 million to move the inhabitants of the Village of Kivalina.[6] Even though Alaska Native communities are generally small (ranging from a couple to several hundred people), they are located in remote areas often accessible year-round only by airplane, a reality that makes relocation extremely expensive. The costs will only grow as flooding and coastal erosion pose increasing threats to homes, infrastructure, and the way of life in more of these communities.

Funding to relocate these villages must come from somewhere other than the local communities. Most Alaska Native villages are self-sustaining communities closely tied to the sea and river ecosystems where they hunt and fish for food. Federal funding is essential, but villages often fail to qualify for the disaster-mitigation programs administered by the Federal Emergency Management Agency (FEMA). A village may lack a FEMA-approved disaster-mitigation plan, which is a prerequisite for mitigation funding, and even if such a plan is in place, it does not guarantee funding.[7] FEMA makes funding decisions based on the cost-effectiveness of a project, and the high costs of new infrastructure (in comparison to the small numbers of people relocated) make relocation projects costly.[8] In addition, the nature of the risk (in this case, gradual coastal erosion) may frustrate attempts to obtain a federal disaster declaration, and serious obstacles prevent many villages from participating in the National Flood Insurance Program.[9] 

In addition to the difficulty in qualifying for federal disaster funding, these villages also face serious challenges in the planning and decision-making phases of relocation. Decisions regarding relocation depend on the coordination of efforts by local, state, and federal authorities. The impacts of gradual coastal erosion and flooding are not governed by one federal or state agency.[10] Federal funding may be administered by multiple agencies, including the Army Corps, FEMA, and the Department of Housing and Urban Development. Without clear structures for information sharing and coordination, decision making is inefficient at best.  Indeed, the authors of the IPCC report on climate impacts note that “limited integration or coordination of governance” can hinder adaptation efforts.[11] 

Given the considerable difficulties in obtaining governmental assistance, it is not surprising that one Alaska Native village recently turned to the courts for relief. In 2008, the Village of Kivalina sued oil, energy, and utility companies in federal district court, alleging that the defendants’ greenhouse gas emissions have caused global warming, which is, in turn, causing massive coastal erosion and increasing the risks of extreme weather and flooding.[12] On appeal, the Ninth Circuit affirmed the district court’s dismissal, concluding that under Supreme Court precedent, claims for damages pursuant to the federal common law of public nuisance are displaced by the Clean Air Act.[13] The majority concluded its opinion by acknowledging the seriousness of the problem, but characterizing it as one not amenable to judicial action: “Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. But the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of government, not the federal common law.”[14]

Of course, given the interests involved, a complete political solution to Kivalina’s “dire circumstance” is unlikely. Congress is not likely to appropriate the millions of dollars required to relocate the village. But perhaps more modest goals are within reach. A combination of legislative and executive action could address coordination problems, making the administration of available funds more efficient and effective. Revision of current disaster-assistance laws and policies may remove some obstacles that villages face when applying for federal assistance.

Furthermore, although any response to the problem is likely to be a political one, civil litigation may nevertheless have a role to play. Plaintiffs will have difficulty establishing the required legal elements, including the causal link between climate-related harms and the conduct (i.e., greenhouse gas emissions) of specific defendants. But as social movement activists and scholars have long recognized, even unsuccessful lawsuits can serve important functions. They often capture media and public attention and provide a means by which to communicate grievances to the larger political society and to shape the discussion of critical issues.

In fact, Kivalina’s lawsuit may have had such an effect. The village’s story is often recounted in news articles and scholarly commentary, and in many cases, the focus is on governmental accountability, rather than private liability. For example, one news account quotes a Kivalina Council leader’s description of the problem as one of political injustice: “‘The U.S. government imposed this Western lifestyle on us, gave us their burdens and now they expect us to pick everything up and move it ourselves. What kind of government does that?’”[15] As the Ninth Circuit opinion suggests, this is a question best addressed to the political branches of government, ideally acting in response to shared commitments in the larger political society.  The lawsuit may have helped educate the public and even played a role in framing the relevant questions; perhaps future litigation can help ensure that we keep the conversation going and identify solutions sooner rather than later. The threats to these communities are not theoretical or distant; they are already here.

Shannon Roesler, Professor of Law, Oklahoma City University School of Law

[2] Id.

[3] See U.S. Gov’t Accountability Office (GAO), GAO-09-551, Alaska Native Villages: Limited Progress Has Been Made on Relocating Villages Threatened by Flooding and Erosion 12 (2009).

[4] Id. at 12.

[5] See id. at 29.

[6] See Native Village of Kivalina v. Exxonmobil Corp., 663 F. Supp. 2d 863, 869 (N.D. Cal. 2009).

[7] See GAO, supra note 39, at 22.

[8] See id. at 22-23.

[9] See id. at 23-24.

[10] See id. at 36.

[12] Native Village of Kivalina, 663 F. Supp. 2d 863.

[13] Native Village of Kivalina v. Exxonmobil Corp., 696 F.3d 849, 858 (9th Cir. 2011).

[14] Id.

[15] Stephen Sackur, The Alaskan Village Set to Disappear Under Water in a Decade, BBC News Mag., July 29, 2013.

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