In an essay after superstorm Sandy, Michael Gerrard, director of the Center for Climate Change Law At Columbia University, proposed that instead of thinking about what Sandy was, we should focus on "what Hurricane Sandy was not," as his title put it.
Sandy was neither a worst-case climate event nor a 100-year storm, he says. And because there's already so much heat roiling the climate system, government action won't stop future warming and future Sandys for at least the next century. So the country needs to look harder at how to adapt to them.
Katherine Bagley of InsideClimate News spoke with Gerrard, a nationally known environmental lawyer, about where things stand with U.S. adaptation policy, what can be accomplished under current law and whether Sandy has changed thinking on adaptation.
InsideClimate News: There's currently no comprehensive federal law on adaptation. But are there any piecemeal federal, state or local laws that could provide a model or legal framework for something more sweeping?
Michael Gerrard: Well, the National Environmental Policy Act and the counterparts that exist in several of the states certainly provide a framework for analyzing the impact that climate change may have on proposed [government] facilities and undertakings.
So, those laws do provide a framework for the analysis part—for analyzing what the problems may be and pointing toward solutions. They are pretty much purely procedural instead of substantive, but I think they are about the closest we have at the federal level.
(Editor's note: The National Environmental Policy Act, passed in 1969, requires all government agencies to consider the environmental impact of their activities.)
ICN: Do you think Hurricane Sandy will make it a priority for Congress to pass a comprehensive law on adaptation?
Gerrard: I think for the people who already believe in climate change, it may move it up a notch on the priorities list. I don't know that the hurricane is going to have a big impact on those who don't believe in climate change, and that is a group that regrettably seems to be controlling the [U.S] House these days.
ICN: Are we at a critical point where we have to pass a law?
Gerrard: Both in respect to mitigation [slowing climate change] and adaptation, the longer we wait, the harder it will be. It is hard to identify exactly what the critical point is. One could argue that it passed some time ago because regardless of what happens, things will get a lot worse before they get better. But certainly, every month that goes by, we get further in the hole.
ICN: What would have to be included in the framework for it to be effective?
Gerrard: It would start with analysis of what is the whole varying array of problems that need to be addressed. Then decisions have to be made about to what degree of protection do we want to invest in. When you look at all the infrastructure—the power systems, the transportation systems, the coastal areas—everything has been built up with a reliance on a more or less continuation of climate trends and with historical extremes being future extremes.
ICN: What kind of public investment would be needed?
Gerrard: Public investment in preparing for it [climate change] and coping with it would be truly immense. I don't see anything even approaching public consensus for that kind of expenditure, especially in an era when the predominant mood seems to be reducing government expenditures.
ICN: You say that land-use decisions involved in adapting to climate change are "heartbreaking." Why?
Gerrard: Some of the areas that were devastated by Hurricane Sandy, for example, were communities where people have lived for generations. The question arises: Does it make sense to have rebuilding, especially with public money, in areas that are just as vulnerable now as they were before the hurricane arose? One possible outcome is not to have public money go toward rebuilding in extremely vulnerable areas. Or, to possibly go further, to say that rebuilding is prohibited in extremely vulnerable areas. But, that would have the effect of destroying a long standing community, which is a heartbreaking outcome.
ICN: You live and work in New York City. Is it your sense that Sandy is inspiring action?
Gerrard: Well, certainly in New York City it is. Sandy very much got the attention of the political and policy communities in New York. It is leading a tremendous amount of thinking and planning and work on how do we guard against the worst effects of this kind of thing in the future.
ICN: Is there anything New York City can do at this point to "climate-proof" the city?
Gerrard: I think climate-proofing is not something we can do. There are so many different kinds of extreme events that can happen. I don't see any circumstance under which the city could be made to invulnerable to those. It can certainly be more resilient and be able to cope with them better.
ICN: There has been a lot of talk about constructing a massive sea wall around lower Manhattan. Would that be your No. 1 priority?
Gerrard: That would not be my No. 1 priority, but I do think it makes sense to give it a serious study. There are a number of problems with it. Number one, it would deal with one kind of event that we just had, but there are various other kinds of extreme events that could hit New York and many who wouldn't benefit from that—protracted heat waves, extreme precipitation, events not associated with coastal storms and various other events that a sea wall would do nothing to address.
It is also quite possible that a sea wall would have adverse effects nearby. Those behind the wall would be protected, but those alongside it would get a greater brunt of the [storm's] energy. I think the highest priority right now in terms of substantive work, as opposed to the planning and studies that need to go forward, concerns the electrical system. The most widespread suffering that occurred from hurricane Sandy was because of protracted electricity service throughout much of the metropolitan region. I think making the electricity system more resilient deserves to be high on the priority list.
ICN: You say that Sandy was not a worst-case event or even a 100-year storm, as it once might have been. What does that mean about our climate system right now?
Gerrard: It means the temperatures are continuing to go up and more extreme events will be more common and more intense. That pattern is going to continue for quite some time, get worse and worse. As long as the temperatures continue to increase, these kinds of extreme events will happen more often and more intensely. Temperatures are going to continue to increase until such time that the world significantly reduces its greenhouse gas emissions. When that will happen is anyone's guess.
ICN: Can we afford to permit the endless extension of fossil fuel combustion for the rest of the century?
Gerrard: The question almost answers itself. Clearly we can't afford to continue increasing fossil fuel combustion. We needed to begin taking action ten years ago.
ICN: Even if we do take action now, climate trends over the next 100 years are unlikely to change, though it will have an impact at the end of the century. Will that be used as an excuse to not act today?
Gerrard: We're already seeing some of that. Regrettably, it is the case that greenhouse gas emission cuts that we undertake now will not have a direct positive impact on the climate for several decades to come. They can have other positive impacts. They can reduce conventional air pollutants. They can lead to greater energy security. They can save a lot of money. But they won't have much effect on the climate.
And unfortunately, there is nothing unique about our current place in time. Politicians are reluctant to spend a lot of public money on activities that will not yield a clear benefit in the short term. Or even in the medium term. It is a very tough issue in trying to get enough of a consensus to spend money now that will help our grandchildren, but not ourselves.
ICN: Is there recourse in the law to force government action?
Gerrard: The efforts to use common law tools to try and slow down greenhouse gas emissions so far have failed, and I think that is likely to continue to be the case in the courts. There are a number of statutory rules led by the federal Clean Air Act. The EPA is moving forward with its use of the Clean Air Act and some other statutes to reduce greenhouse gas emissions. All of that will be ferociously litigated. So far, the EPA has done pretty well in that litigation. But the courts will play a major role going forward in determining whether the EPA can continue to exercise that statutory authority in the way it has been doing.
ICN: Do you expect climate law to become a dominant branch of legal system in the coming years?
Gerrard: I wouldn't say that climate change law will be a dominant branch, but I think the impacts of climate change are going to have important bearing on many other areas of law. Certainly real estate law, zoning law, a lot of commercial relationships, aspects of health care, housing law, many other areas will be significantly affected by what happens to the climate.