Sea Level Rise: Will Cities Be Held Liable for Failure to Plan?
"Apres moi le deluge," Madame de Pompadour supposedly said, shortly before the people of France rose up and removed her head: "After me, the flood."
South Florida's coastal cities are beginning to say the same. But one hopes there will be better results. They're recognizing that climate change is for real, that sea level rise will follow, and that precautions are in order.
Now it seems that cities denying that reality are courting double trouble: flood damage that was predictable and could have been mitigated, and a wave of lawsuits for failure to prepare.
Many areas of Florida are experiencing increased tidal flooding due to sea-level rise (SLR). Florida has experienced eight to nine inches of SLR over the past 100 years. The roughly four and one-half inches of rise in the last 50 years has decreased the efficiency of some older stormwater systems designed to function with lower sea levels. As a result, tidal waters back up within the drainage systems and stormwater systems drain slower, causing more frequent flooding. Tens of billions of dollars of real estate in Florida are potentially at risk due to SLR and its commensurate flooding.
How should local governments respond? Miami Beach, which has become infamous for tidal flooding, is incorporating sea-level rise into plans for spending more than $200 million to expand the city's drainage system. But costs for addressing flooding will only rise with the waters, potentially drowning local governments in rising debt if not rising water. This raises the question as to whether local governments must prevent flooding due to SLR at any cost. Do local governments have a duty to perform this type of protective upgrade on outmoded drainage and flood controls or is this government action discretionary? As SLR-induced flooding causes greater inconvenience and even damage to property, will municipalities be faced with the difficult choice between expending millions of taxpayer dollars for these improvements or being subject to lawsuits from private property owners seeking damages?
Ruppert and Grimm reached no definitive conclusion.
They noted that cities are greatly shielded from tort claims by the doctrine of sovereign immunity but that the "distinction on which immunity hinges is so unclear that it has been said that '[t]he enigma is now shrouded in mystery.'"
Alternatively, they wrote, property owners might resort to a form of "takings" claims, "inverse condemnation," against which sovereign immunity is no defense. "The inaction of government has historically been insufficient to support a claim for inverse condemnation," they write. But they also point to two recent cases that may change that.
On the other side of the coin, cities may also wade into legal trouble when taking steps to mitigate sea level rise. In the Louisiana Law Review of November 2012, Georgetown University Law Professor J. Peter Byrne wrote:
Neither the common law nor traditional notions of zoning contain legal resources adequate to cope with the economic, environmental, and human risks that sea-level rise will generate. New forms of regulation and shifts in the content of common law rules will generate novel claims of regulatory takings, confronting courts with puzzling questions of fundamental rights under unprecedented climatic conditions.
Sea level rise lawsuits have yet to be filed against South Florida's cities. But elsewhere, the climate change litigation flood has begun. In Illinois, for example, one insurance company in April filed nine class actions against nearly 200 communities in the Chicago area.
As we are in a period where we're seeing an increased frequency and severity of extreme weather events, it's likely that we'll tend to see more, say, urban flooding events... that cause damage to homes, to businesses and to infrastructure. I think this [lawsuit] is part of a larger question about who's going to pay for all of this.
Fire Ant -- an invasive species, tinged bright red, with an annoying, sometimes-fatal sting -- covers South Florida news and culture. Got feedback or a tip? Contact Fire.Ant@BrowardPalmBeach.com.
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