Only 6 Months Until New FEMA Guidance Requiring Consideration of Future Climate Risks in State HMPs Becomes Agency Policy

In March 2015, FEMA issued a State Mitigation Plan Review Guide, following notice and comment. Under the new guidance, state Hazard Mitigation Plans (HMPs) must consider the probability of future hazards, taking into consideration changing future conditions including changing climate and weather conditions.  And, on March 6, 2016, this new guidance will become the agency’s official policy on the natural hazard mitigation planning requirements of Title 44 of the Code of Federal Regulations (CFR) Part 201, and FEMA’s interpretation of federal regulations for state hazard mitigation plans.

A change in the requirements for state HMPs can mean real money to state governments because these plans are one of the conditions of eligibility for certain federal assistance—for example, Public Assistance Categories C-G and Hazard Mitigation Assistance mitigation project grants. Although states are currently required to adopt HMPs in order to qualify for certain disaster funds, under past FEMA guidelines state governments could assess their potential risks based on historic data. In other words, their HMPs could ignore risks from the foreseeable effects of climate change, including rising sea levels, higher storm surges, and more frequent and intense storms, droughts and heat waves. Expressly recognizing the significance of climate change to risk mitigation planning, the new guidance explains that future climate-change related risks must be considered because

“Past occurrences are important to a factual basis of hazard risk; however, the challenges posed by climate change, such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding, and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future.” (State Mitigation Plan Review Guide § 3.2.)

The new FEMA guidance also recognizes the significance of land use planning to risk reduction. The guidance suggests that to effectively increase community resilience the HMP must be more than an emergency management plan and the planning process must include the full range of effected sectors, including land use, economic development, housing, health and social services, and infrastructure.

In an apparent shot across the bow to state climate change deniers, the new guidance also finds that 44 CFR §201.4(c)(6), which requires state HMPs to “be formally adopted by the State,” means that the plan must be adopted by the highest elected official in the state or his or her designee. The guidance states that

“[Plan adoption by the state’s highest elected official or designee] demonstrates commitment to the mitigation strategy and may serve as a means to communicate priorities to entities within the state agencies regarding vulnerability and mitigation measures . . . [and] may increase awareness of and support from the state agencies with mitigation capabilities and responsibilities, not just the state agency responsible for the mitigation planning program.” (State Mitigation Plan Review Guide § 3.7.)

A survey of state HMPs from the 2010-11 period by Columbia Law School’s Sabin Center for Climate Change Law, found that

• 18 state HMPs had “[n]o discussion of climate change or inaccurate discussion of climate change.” (AL, DE, GA, ID, IN, IA, KT, MS, MO, MT, NE, NV, NM, ND, OK, TN, SD, WY)
• 11 state HMPs had “[m]inimal mention of climate change related issues.” (AZ, AR, IL, KA, LA, OH, PA, SC, TX, UT, VA)
• 10 state HMPs had an “[a]ccurate but limited discussion of climate change and/or brief discussion with acknowledgement of need for future inclusion.” (FL, ME, MI, MN, NJ, NC, OR, RI, WV, WI)
• 11 state HMPs had a “[t]horough discussion of climate change impacts on hazards and climate adaptation actions.” (AK, CA, CO, CT, HI, MD, MA, NH, NY, VT, WA)

Even though it appears 21 states already include at least an accurate, albeit sometimes limited, discussion of climate change, the new FEMA guidance requires significantly more—which raises the question of whether states are equipped to address future hazards, including climate-related hazards, as robustly as the new guidance requires. For example, are states equipped to quantify climate-change related risks at the state level? For most, the answer is probably “no.” The Guide gives a nod to this problem, suggesting that “states are expected to look across the whole community of partners (for example, public, private, academic, non-governmental, etc.) to identify the most relevant data and select the most appropriate methodologies to assess risks and vulnerability.” (State Mitigation Plan Review Guide § 3.2.) However, notwithstanding potential support from community partners, the complexity of scaling global climate data to a regional scale and identifying related risks within a relatively short time frame means that most states will be hard pressed to quantify future hazard probabilities by the time their next HMP update is due.

New York may be among the few states that are equipped to respond in time. New York’s Department of State and Department of Environmental Conservation began developing statewide climate-related projections earlier this year in response to the newly enacted New York Community Risk and Resiliency Act, which among other things directs the state agencies to prepare climate projections and model municipal laws taking into consideration sea-level rise and other climate-related events.

Given the unmet need for state and local resources to adequately assess, plan and ultimately implement hazard mitigation strategies that account for climate change, as well as the political backlash from the new requirement, is FEMA’s new guidance ill conceived? My answer is “no.” Many resources exist to help states in their hazard mitigation planning process, and I suspect FEMA will accept plans that consider climate change risks even if the supporting climate data are not scaled to the state level, as long as the state risk assessment takes into consideration FEMA's updated flood maps and other available climate-related risk projections.

And, more significantly, the new guidance is a necessary step in closing a troubling gap between climate-related vulnerabilities and preparedness that exists in the United States. Global temperatures are increasing and the rate of increase is accelerating, with corresponding increases in sea levels, acidification of oceans, and losses of flood-mitigating wetlands. Many communities are already experiencing climate change related hazards, including eroding shores, more massive storm surges, more severe storms, salt water intrusion, loss of land, heat waves, wildfires, and droughts. State HMPs based solely on historic data that don’t take into account these changing conditions fail to address the full gambit and magnitude of hazards that are likely to impact the states—with resulting loss of lives, public health and welfare impacts, property damage, and potentially avoidable expenditures of federal disaster funds. Thus, although some lawmakers are charging FEMA with politicizing the hazard mitigation planning process and access to disaster funds, state administrations that are unwilling to fully consider and plan for foreseeable hazards are themselves jeopardizing public health and welfare in order to hold onto a political position that no longer holds water.

For more information check out:

• FEMA’s State Mitigation Plan Review Guide Fact Sheet
• State Hazard Mitigation Plans & Climate Change: Rating the States (Matthew Babcock, Sabin Center for Climate Change Law)
• FEMA to States: Want Disaster Mitigation Funds? Then Plan for Climate Change (Planetizen blog post)

Post by Sarah J. Adams-Schoen, Assistant Professor of Law and Director of Touro Law’s Institute for Land Use & Sustainable Development Law, and managing author of the blog Touro Law Land Use.