2011 National Planning Conference: Bettman Symposium

Climate Change and the Law

By Joseph A. MacDonald
Senior Research Associate

The always popular Bettman Symposium at the 2011 National Planning Conference in Boston kicked off on Sunday afternoon to a standing room-only audience with a riveting pair of presentations and discussion on Climate Change and the Law.

Moderator Molly Dunham, APA's new staff attorney and editor of Planning & Environmental Law, introduced speakers Robert Verchick and Patricia Salkin. Verchick is professor of law at Loyola University of New Orleans and played an instrumental role in the many issues the city faced in the aftermath of Hurricane Katrina. Salkin is professor of law at the Albany Law School and co-director of the Government Law Center.

Retooling Resilience

Verchick's address, "Retooling Resilience," focused on three themes: the prevalence of disaster, federal prescriptions to mitigate/reduce risk, and a story about the Lower 9th Ward of New Orleans he wagered the audience had never heard.

According to Verchick, disasters have been more prevalent in recent years than in previous recorded history: Pakistan's floods, Russia's wildfires, Japan's earthquake and tsunami, and countless others. For Verchick, all of these disasters are backlit by New Orleans and Hurricane Katrina. He contemplates daily the relationship among climate, environment, and community.

Verchick says the United States loses more money to disasters than other country in the world except Japan, and losses in the U.S. tend to double, or even triple, every 10 years. But the fault lies not with nature and changing climate, but rather humans' decisions to build where they shouldn't and to destroy or remove natural environmental features, such as dunes, wetlands, and marshes that protect us.

Over the next hundred years, climate change will only compound the problems human have created for themselves through increasing temperatures, changing precipitation patterns, rising sea levels, and more frequent extreme events. Despite the dire reality, Verchick offered three mantras to aid governments at all levels as they plan ahead: Go Green, Be Fair, and Keep Safe.

Verchick charged communities to "Go Green," to go out and preserve and protect natural infrastructure (soft armoring, green infrastructure) — the services that nature provides that protect us from harm. The federal government must change its thinking about our natural infrastructure (navigation, fishing, public health),  see ecosystems services as a private benefit, change forest management, water resources under the Army Corps, change NEPA and EIS, and change section 404 permits issued for wetland filling.

According to Verchick, disasters are not social equilizers — they are amplifiers of social injustice. Hazard = Exposure + Vulnerability. Even though exposure may be the same across racial and socioeconomic groups, tremendous variation in wealth, assets, sophistication, insurance coverage, and other factors leads to tremendous variation in vulnerability. Verchick offered the example of a new resource through Oxfam and researcher Susan Cutter that geospatially quantifies vulnerability and climate change in the U.S. (http://adapt.oxfamamerica.org). The map shows where high risk and high vulnerability coincide, highlighting areas where states should concentrate their resources and efforts.

To illustrate how communities can "Keep Safe," Verchick referenced the Opening Keynote Address by Michael Sandel about justice and the prevalence of cost-benefit analysis in policy-making and decision making. However, the problem with cost-benefit analysis is that it falls apart when you consider events that are very low in probability but very high impact (when things go terribly wrong). Examples include the anticipated 300-year tsunami along the Oregon Coast and the BP Deepwater Horizon oil spill disaster.

He made a case for Multiple-Scenario Planning, which encourages planners to think of a range of plausible options and try to craft principles of land use that will work with each scenario (a good example is Smart Growth). MSP was reflected in the recent progress report of the international council on climate change were goals included mainstream adaptation planning (robustness) and principles include prioritizing the needs of the most vulnerable.

Verchick's promised story of the Lower Ninth Ward of New Orleans recalled a recent production there of Beckett's play Waiting for Godot by actors from Harlem and New Orleans. A rapt audience gathered in the still-ruined neighborhood for gumbo, music, fellowship, and the play. In the course of the evening, they heard the character Vladimir utter these critical words: "Let us not waste our time in idle discourse; let us do something while we have the chance. It's not every day that we have the time ... all mankind is us."

Local Mechanisms for Disaster Planning

Patricia Salkin took planners back to school with her presentation "Local Mechanisms for Disaster Planning."

She began with a litany of federal legislation and programs in place, both requested and required, but noted there is not much coordination. Many of these incorporated at the local level are stand-alone documents on a shelf. Many are not incorporated at all. She offered familiar reasons why, but also promised to offer inexpensive strategies that we all know that should be reconsidered: The Local Planning Toolbox.

Because local governments are on the front line, Salkin strongly emphasized the necessity for them to use what they have to protect health, safety, and welfare and not wait around for federal first moves. Local governments are experienced. They are where losses are suffered most directly, and they are best suited and most appropriate to plan for and implement mitigation measures proactively.

The Local Planning Toolbox includes comprehensive land use plans, other plans (transportation, corridor, downtown, recreation and parks, coordination among plans within a municipality, coordination of plans among multiple municipalities, and zoning and land use regulations to make it all happen. Salkin presented examples from Pennsylvania, North Carolina, Oregon, Idaho, California, and the 2002 APA Growing Smart Legislative Guidebook ("The Bible").

The Zoning and Land Use Control component of the Toolbox includes tried-and-true practices implemented by planners for decades. These include limitations (including amortization) for non-conforming uses, setbacks, overlay zones, subdivision regulations, site plan review, performance standards, critical environmental areas designation, steep slope ordinances, and incentive zoning. Other preservation techniques include open space acquisition (transfer of development rights and purchase of development rights) and conservation easements (including the "rolling easement" intended to move with changes in sea level based on the median tide elevation).

Salkin also took planners back to school by revisiting two famous cases in land use/property rights law, the Dolan and Lucas cases, and emphasizing the need for planners to be creative when interpreting the rulings in those cases. Lucas, Salkin argues, does not mean planners are powerless to regulate. It simply means that planners must ensure that regulation does not go so far as to take all economic value of property. In the same vein, Dolan does not mean planners cannot regulate in floodplain areas and use greenway tools, but that when doing so they must remember the essential nexus and rough proportionality tests and utilize them.

A good defense for planners when facing property rights advocates is a good offense: Require intergovernmental coordination; training, training, and more training; form strategic partnerships with NGOs that are cross-disciplinary and strategic partnerships with sister federal and state agencies; provide access to the promise of GIS; celebrate the success of preventative strategies; and coordinate with local environmental review

Waiting for an international climate change panel or federal climate change statute is a cop-out, Salkin said. Planners need to act at the local level.

She implored the audience to not blame others or make excuses. Put federal government in a supporting role and tell them what planners need at the local level. Balance economic/property rights interests, coordinate different plans, put tools and techniques together and protect human life, health, safety, welfare.

Send an e-mail to WebsiteEditor@planning.org for permission to reprint this article.