 All right, welcome back everybody. We're gonna get started. We're gonna try to keep on time a little bit. We got a late start this morning. I promise you that if we all get seated, we'll still be able to keep our full lunch, so you can have all of these conversations during lunch. I'm really glad that everybody is finding lots of different issues to discuss with one another. Before I introduce our next speaker, there were a couple questions that came up during the break about who is in the room. And so I just wanted to quickly address that. We have about 150 people that registered for this workshop. I think we lost about 30. We're hoping they'll still come through and come in later. But of that, about 120 of you came from the general public as in not a student here. And of those that came from the general public, we had a really good distribution of state and local government. We had about 30 attorneys, or at least people who were willing to tell us they were attorneys, and about 20 certified floodplain managers. During our breakout groups, there will be the opportunity to share who you are and some of the issues that you're facing. So hopefully you'll be able to have some of those conversations about getting to know each other during lunch and then during the breakout sessions. But now we're gonna hear about some of the legal issues from recent hurricane seasons and increasing risks of flooding. Dina Adler is a climate law fellow at the Saban Center for Climate Change Law at Columbia Law School. Dina's work at the Saban Center includes tracking US and international trends in climate change litigation and developing legal and regulatory tools to advance the efforts of governments and private actors to adapt to changing climate and to mitigate the effects of climate change. Dina has her JD from Yale Law School and a Masters of Environmental Management at Yale School of Forestry and Environmental Studies. Good morning, everybody. Thank you, Julia, for having me here. As Julia mentioned, I'm Dina Adler. I'm a climate law fellow at the Saban Center for Climate Change Law at Columbia Law School. And I'm going to be using the recent hurricane seasons and flooding from those hurricanes as a little bit of a lens for thinking about some of these issues. They certainly paint a stark picture of some of the risks of flooding, but what I'm gonna talk about in terms of litigation and policy solutions by no means are limited to flooding caused by hurricanes. So I'm hoping to pivot gears a little bit from the great remarks from Dina and Elena on the potential liability of local and state governments. So if you're local state folks in the room, I'm not going after how you might be responsible now. I wanna start thinking about how the private actors who own some of these facilities might be put on the hook and be responsible to adapt their facilities. And some of these theories, they may not even be trends yet. They're kind of novel, they're nascent. They're some food for thought for the law students who are in the room. But I'm also, since a lot of these legal theories may not yet be ripe, may not bear fruit, we're gonna talk about how local and state actors can use policy solutions to fill the gaps. And then the second half of my presentation, I'm gonna transition to specifically look at some local and state opportunities to help the national flood insurance program, which has many people in the room know, probably needs a lot of help, but maybe look at some piecemeal places where we can help it work better in the face of climate change. And I know there's a wide variety of folks in the room, so I'll try to touch on these issues in a way that appeals to different levels of background. I'm gonna cover a lot of ground. It's more of a survey, but maybe when we're dealing with flooding, it pays to be shallow rather than deep, right? So launching right in, I don't think it shocks anyone in this room, that extreme weather is extremely costly. We already touched on this figure earlier this morning, but in 2017, the US experienced a historic 16 weather and climate disasters that cost over a billion dollars each, cumulatively costing more than 300 billion dollars. And half of those events were related to hurricanes, flooding, or other extreme weather. And digging specifically into the hurricane aspect, the top five costliest US hurricanes on record, we had three in 2017 that cumulatively cost 265 billion dollars in damages. Florence this year on the projections I saw from Moody's, I don't know if they've been updated, but we're thinking that the cost would be between 38 and 50 billion. So we're seeing mounting costs recently from these hurricanes. And those costs of course are not just economic. I'm inundating you with the requisite inundation photos for one of these presentations. Here's some images from Hurricane Harvey. We're talking about the emotional costs of people losing their homes, environmental and human health costs as we look at the flooding of superfund sites, the leaking of sewage, the unpermitted air pollution. There were I believe 8.3 million pounds of unpermitted air pollution reported after Harvey because of the shut down, the unexpected shut down startup and malfunction of various facilities. And obviously that area that Hurricane Harvey had is a real hotbed of those types of facilities, but air pollution is maybe not the first type of pollution we think about when we think of flooding. But in thinking about this wide variety of potential impacts it helps us think about what the maybe legal hooks might be in order to help make sure that these facilities prepare themselves for flooding. So we already had a nice rundown of the science, but just to reiterate we are brewing a perfect storm literally and figuratively for these problems as we think about the increasing risk from the expected intensity of tropical cyclones, sea level rise of one to four feet by the end of the century and as much as eight feet and of course more frequent and intense extreme precipitation events. So I'm going to break my talk down into two buckets of solution as we start trying to bail water a little bit on these problems. And so as I mentioned the first bucket is going to be these sort of emerging and potential litigation avenues against private actors. And I'm focusing a bit on energy related infrastructure. We'll hear more about other types of infrastructure later this morning. And I admit I'm not touching on some of the really big suits that you probably have seen in the mainstream media against fossil fuel companies by around a dozen municipalities and the state of Rhode Island now seeking to get those fossil fuel companies on the hook for paying for adaptation costs. I'm really digging into the kind of like nascent theories that I think aren't getting as much press to kind of help us think through where we might be going in this space. And then the second half of my talk I will be discussing some updates for the National Flood Insurance Program, as I mentioned with an emphasis on local and state innovations. So diving right into bucket one, I'm going to survey kind of four potential issues. I'm going to talk about Hurricane Harvey and some recent negligence and criminal suits against the Arkema chemical plant and the explosions that happened there. Then I'm going to go over to talk about some conservation law foundation litigation that was filed against Exxon and Shell in regards to petroleum products, storage, and distribution facilities that are attempting to get those facilities on the hook prior to any kind of large leakage event, more of a failure to adapt before the disaster litigation suit. Then we're going to jump over to the National Environmental Policy Act and how environmental review can potentially create an opportunity for litigation and then briefly touch on rate making petitions as an opportunity to get public utility service commissions to force utilities to understand and prepare for climate change impacts. So I'm going to have to keep us moving at a clip. But this map, just to kind of set the context for these Hurricane Harvey suits, shows the distribution of energy and industrial infrastructure that was exposed to flood waters from Hurricane Harvey. And as you can see, highly concentrated in that area. And this is a particular hotbed. And the Arkema chemical plant, which some of you probably saw the headlines after it exploded, it lost electricity, its backup generators failed, it was refrigerating highly volatile chemicals, which then exploded and released really noxious fumes that made first responders really ill and residents and they had to evacuate within a mile and a half of the facility. And subsequently, Harris County and the state of Texas sued the plant. There have been a number of lawsuits filed. First, I'm going to mention the civil lawsuit that they filed, which alleged violations under the Texas Clean Air Act, the Texas Water Code, and the Harris County floodplain regulations. And what's notable about this case is kind of seeing this transition of the state thinking about suing or not thinking about suing the company for risks they should have known about, not risks that they had previously experienced. So a lot of the preparation for flooding at the facility were based on what had been historically experienced. And so we started, Lena and Deanna started talking a little bit about the questions of what is foreseeable, which is for the lawyers and law students in the room, a big question in the law and how that is changing. So I think following the suit could be very interesting for teasing that out. There are also suits filed by the first responders and that were injured in the grave suit and the residents as well. And those were under several theories of negligence. And then there are also some criminal suits that have been filed against Arkema and its CEOs and they were indicted in August. So all this litigation is still pending and it's hard to tease out exactly what the results will be now, but it's certainly putting these facilities on notice of how foreseeability is shifting, what's constituted as reckless behavior in light of what knowledge these facilities had is changing. So jumping a little gears, and I know that we have some friends from the Conservation Law Foundation in the room, so they can feel free to pipe in if there's anything they want to add to my summary of their organization's cases. But the Conservation Law Foundation filed two suits, one against Exxon, one against Shell in recent years for failure to adapt their facilities and alleged violations of the Clean Water Act and the Resource Conservation and Recovery Act. And these cases argued that in light of what these companies knew about climate change and the risks of climate change, there is more that they can do to prepare their facilities in terms of the planning and preparation and updates that they have to do the facilities to deal with surge and flooding. And you can see in the map on the screen the vulnerability of the Everett Terminal in Massachusetts, which was the subject of the first lawsuit fired against Exxon in 2016 and that facility's vulnerability to surge during a hurricane event. And in this case, there were 14 claims filed under the Clean Water Act and one under the Resource Conservation Recovery Act. The second case filed against Shell in regard to their Providence facilities, again, is vulnerable to surge during a hurricane event, as you can see on the map. And in both of these cases, I should have noted, we're talking about facilities that store and distribute petroleum products. Here we're up to right now 20 Clean Water Act claims and currently one claim under RICRA, but there's a proposed second amended complaint that CLF is waiting for leave to file that would add another RICRA claim there that is very interesting and would be particularly interesting to see what the courts do with that. So just touching briefly on these claims, under the Clean Water Act, as you know, many folks in this room know, regulated point sources can't discharge pollutants to a water of the US without having the appropriate permits, the National Pollution Discharge Elimination System. Nipty's permits are the state level equivalent. Ripty's and Rhode Island are needed for industrial facilities of this nature and these permits regulate the discharge of industrial wastewater, process water, and the stormwater that comes off of these facilities. And these alleged violations do include numeric effluent, a limit of violations, but they're also much broader than that, right? They're operational requirements. They're planning requirements to prevent stormwater runoff and do spill prevention. They're monitoring, reporting, informational requirements. They're failures to amend and update. So lots of different ways where we're thinking about how these facility owners could be on the hook based on what they know before you actually have these leaks happening, which is really optimal for everyone's well-being. And then of course, the Resource Conservation and Recovery Acts add in this hook for the treatment and handling, storage, transportation of potentially hazardous waste. And the language there that's really important is that it poses an eminent and substantial endangerment to health or the environment. And the new, the second amended complaint that they're hoping to file touches into what might be the case for a large generator of hazardous waste, additional requirements that they may have to make sure they operate their facility in a way that prevents a sudden or non-sudden release of these discharges. So where are we in these cases? In the Exxon case, which was filed first, we heard from the court last September and 2017, the US District Court of Massachusetts made a decision on standing and ruled that Conservation Law Foundation did have standing for present and eminent injuries to its members' aesthetic and recreational interests in the Mystic River. But it said they did not have standing for injuries that allegedly will result from rises in sea level increases in the severity and frequency of storms and flooding that will occur in the far future, such as in 2050 or 2100. So, mixed bag. Why is it particularly interesting or concerning that they've made this, the courts made this split regardless of what the jurisdictional logic is in terms of preparing for climate change impacts. Well, sorry, I should rewind for a second. The court's logic here that they wouldn't assess these future impacts is that Nipty's permits have to be updated at least every five years. So you couldn't make a ruling based on what would happen beyond those five years because the permits could be updated and thus you wouldn't have these problems and violations. So the reason going back that that would be concerning is the idea of permit shields. So under the Clean Water Act, Nipty's permit holders are largely shielded from liability for their discharges as long as they're in compliance with their permits. So now we're finding ourselves potentially in a scenario where if these permits and their requirements are not updated to reflect rising risks of climate change but are just being based on historic flooding events that you're going to basically provide a shield that lets the owners of these facilities avoid needing to update their planning and conformance with good engineering practices. So that if this is how the case goes forward, it really highlights the importance of finding a way to update these Nipty's permit requirements and the state water quality standards that when those are updated, they trigger needing to update the Nipty's permit requirements in order to make sure that those state water quality goals are met. And I know Elena and the Q and A kind of set us up for this a little bit talking about the importance of maybe even having re-opener clauses to update these permits sooner than when they renew. And really larger than even the re-opener clause issue is the fact that just so many of these permits are administratively renewed without being reconsidered. And I mean, that's probably a limitation of government resources, but this litigation kind of highlights the need to dig in there. So the third thing I'd like to talk about in bucket one is environmental review and the National Environmental Policy Act, which requires federal agencies who are undertaking actions that significantly affect the environment to do a review of those effects on the environment and the adverse consequences possible alternatives. And the courts have been trying to tease out what exactly that means for consideration of climate change. And in 2016, the Council on Environmental Quality and the Executive Office of the President attempted to try to clarify what these requirements should be with some guidance and that offered guidance on how we should consider both greenhouse gas emissions that would be emitted in relation to these projects and also how we should consider the effect of climate change impacts on projects during environmental review. This guidance was withdrawn by the Trump administration in 2017, but the withdrawal made very clear that it did not walk back any existing law on which the guidance was based and the guidance very much was meant to clarify existing law, not create new law. So we're left with the state of current case law. I'm not gonna dig into each of these cases in detail, but I put up these citations so that you can see evidence that there are multiple courts that have already found that considering climate change is definitely a part of environmental review. The question is what does an adequate consideration of climate change look like? So how could this potentially be interesting for facilities that handle petroleum products and energy infrastructure, fossil fuel related infrastructure? Well, under the Natural Gas Act, the Federal Energy Regulatory Commission is responsible for environmental review of facilities that are related to natural gas, including LNG facilities, which we're seeing a lot of popping up along the coast in recent years. They have released guidance that says that as part of your environmental review, you have to consider flooding and hurricanes and sea level rise due to climate change. So SAVEN Center is engaged in submitting public comments and making sure to drive home that these duties exist. There have been a couple of FERC orders where there've been administrative proceedings raising the question of whether a couple of facilities have adequately considered sea level rise. It's just been not, I mean, more than a footnote, but it's really just touched on these issues very briefly so far. It's found that consideration of sea level rise has been adequate, but that's largely been a question of these facilities. The fact that the review was adequate in these instances doesn't mean that there couldn't be a future facility that doesn't do it adequately. And what's interesting of thinking about this as a future litigation hook is the idea that it would be done, that this environmental review is conducted upfront before the facility even goes through to completion, but then there's also on the back end this potential litigation hook if they fail. Because after the administrative proceedings you could appeal it to the courts. Again, flagging state level opportunities. There are state and municipal environmental review requirements and that's a place where consideration of climate change can be integrated as well. We have a paper up on the Saban Center website by an attorney at our center, Jessica Wence, that discusses some of the ways this has been done at the state and local level available at that link. So you can check that out via these slides later if that is something of interest to you. The fourth prong that I'm considering in this bucket is how do we work with a state public service commissions and I'm gonna use a case study from New York City following Superstorm Sandy, in which we lost electricity in large areas, but as someone who was born and raised in Manhattan, the fact that we lost electricity in Manhattan was particularly shocking. We just don't expect that. And following Superstorm Sandy, the Saban Center was involved with others to file a petition that the Public Service Commission require utilities to prepare and implement plans to address climate change impacts. This resulted in a final order and settlement with Con Edison to implement some of these state of the art measures to plan for and prepare its electric gas and steam systems for impacts of climate change and the formation of a storm hardening and resiliency collaborative to figure out how to invest a proposed $1 billion in funds to undertake these activities. It's a really interesting story. We were, I think the center was hoping that more states and municipalities would follow the lead and work with other public service commissions to advance this effort. We've also hit some roadblocks. The reporting has been somewhat delayed, but these reports are coming out, been started coming out chapter by chapter this year and we sit in on these stakeholder meetings and we're making sure that the chapters keep coming out and that as they come out, the actual recommendations will be implemented into action on the ground and we will file a subsequent ratemaking petitions as needed to make sure that that happens. So shifting gears a little bit to a second bucket of solutions. So kind of wrapping up, how do we use litigation to kind of prod liability for private actors and how do we avoid getting some of that nasty chemicals that are being dumped into the air and water from being dumped in the first place? Now thinking about another angle on the risk of flooding and the risk to homeowners and thinking about how to update the national or fill gaps in the national flood insurance program. So we've been, the state of the center has been working with the Natural Resources Defense Council over the past year on a couple of proposals, a discounts for buyouts proposal, the adoption of more robust substantial damage and improvement standards and the promotion of state level flood risk disclosure laws. So I'll jump into each of those in a little more detail but just a first a quick overview of the National Flood Insurance Program or NFIP because I know that there's folks with a variety of backgrounds in the room. The NFIP was established by the National Flood Insurance Act of 1968, amended and modified by subsequent acts of Congress and it provides federally backed flood insurance protection for homeowners and renters and communities that have entered the program. And to enter the program, communities have to adopt regulations that ensure smarter development within the flood plains. So these include building and zoning code requirements and the adoption of flood insurance rate maps, which show the level of flood hazard across an area, including special flood hazard areas, which are these areas in the 100 year flood plain, which we've already talked about having a 1% chance of flooding in a given year. And noting these special flood hazard areas is especially meaningful to make sure that we're touching, this is where a lot of the regulations kick in. Even though there are plenty of homes that are at risk that are outside of this flood plain, as we've mentioned, it's not as extensive as it would really need to be in order to make sure folks are protected. So anyone who's familiar with the NFIP knows that it has some problems. To be fair, it has issued 5.5 million low-cost flood insurance policies and those policies are located in 22,000 communities in all 50 states. So it's trying to do a lot, but as of July 2018, it had racked up $20.5 billion in debt and that includes $16 billion already forgiven by Congress in October 2017. And as you can see from the bar chart on the screen, the font might be a little small there. A lot of this debt is associated with hurricanes and other extreme flooding events. So we see this big uptick in the debt, a majority of the debt after 2005 when we had hurricanes Katrina, Rita, and Wilma. And then we see another jump after 2012, after Superstorm Sandy, and then a smaller jump after 2016 with Louisiana flooding and Hurricane Matthew. So thinking about how to deal with hurricanes is definitely at the forefront of this issue. Folks are probably familiar with the fact that there was the Biggerts Waters Flood Insurance Reform Act of 2012 that tried to restore some fiscal soundness to the program by having premiums more reflective of risk rather than being so subsidized, but important sections of that were repealed by the Homeowner Flood Insurance Affordability Act of 2014. So one of the key challenges that could use reform within the NFIP is the issue of severe repetitive loss properties. So these are homes that are caught in the cycle of flood build repeat. You can see on this map, hopefully it looks a little darker from the angle you guys are seeing it, that a lot of these homes are located along the coast, but that they're certainly not exclusive to the coast. And these homes, the rebuilding of them, not only is that emotionally traumatic to keep happening to rebuild your home, but it's eating up a lot of taxpayer dollars that maybe could be spent in other ways to help reduce the risk these homeowners face. So the NFIP has paid 5.5 billion to repair and rebuild 30,000 of these severe repetitive loss properties between 1978 and 2015, and though these properties are only 0.5% of those insured through the program, they represent 9.6% of all damages paid out. So that's a real red flag of a place where we can maybe make a difference in some of the debts of the program. And the program in general is of course in danger because of climate change, but so in particular is the growing, we have a growing number of these severe repetitive loss properties. So more generally, climate change and sea level rise are a problem for the NFIP, because we're gonna have the expansion of special flood hazard areas in this 100 year flood plane, which could grow between 40 and 45% by 2100. So that's increasing the number of people who would seek policies, the average loss cost per policy, which again drives up this problem of needing premiums that are even higher to cover the higher damage costs. And then additionally, if this issue of severe repetitive loss properties, the NRDC has an issue brief that's also linked to on the slide, that an additional three feet of sea level rise by 2100 could result in an additional 820,000 of these severe repetitive loss properties and six feet of sea level rise would result in 2.57 million more of these severe repetitive loss properties. So dealing with these properties would be probably more than a drop in the bucket of handling FEMA's and the NFIP's problems, even if it's not a save all solution. So the first proposal that I'm gonna discuss is this discounts for buyouts proposal. So the idea here would be to offer qualifying homeowners a guarantee of a future buyout as a benefit of their flood insurance coverage. Key word being future, as FEMA currently does buyouts, you offer it after the home has been damaged by a flood event. And the idea to get folks to take this deal would be you could reduce the flood insurance premium as an incentive for them and it would be a voluntary program funded by FEMA administered by states who would be responsible for overseeing the actual purchase of the home and the demolition after a disaster struck. And this is not meant to replace the current buyout program by FEMA, but it's meant to supplement it and it fills some key gaps, right? It discourages the long lag time that usually occurs after a buyout. Usually someone's home is damaged and that's when the clock starts ticking to try to create this buyout transaction. It can take years and meanwhile, this person has nowhere to live. They have high bills to either repair the home or go somewhere else and they don't have the money to go somewhere else to take the buyout. They can't wait for that process. So getting everything in place ahead of the disaster could help expedite that transition. It also lets the homeowner remain in place until after a flood recursion, not trying to relocate people before you have to and it's going to avoid sinking these taxpayer dollars into this flood rebuild repeat cycle. Obviously it wouldn't be economic to offer this sort of a program to all homes. It would be most beneficial to offer this policy to homeowners that have properties valued at less than 250,000, crunching some, NRGC's crunched some numbers and found that those homes have a much higher probability of having the damages exceed the action and the repairs for these damages exceed the actual cost of the structure. So you'd want to make this policy available to homes. You would target it to make it available to homes below that threshold for owners that are lower middle income, a place where you have the history of these, of being at a high risk of flooding in communities that would be willing to help with the relocation and that FEMA determines this is a cost effective place where you'd be sinking more dollars into repeated repairs than the buyout. And obviously it's a very complicated and fraught question to have people relocate, but there's been indications and surveys of homeowners that there's at least some sizable population of folks who would be willing to voluntarily relocate if they were offered the means to do so. The second proposal that I'm going to talk about would be creating more resilience enhancing substantial damage and improvement standards. So FEMA defines substantial damage to a structure as damage of any origin for which the cost of repairing the structure is going to exceed 50% of the market value before the structure was damaged. Improvements function similarly, except instead of a repair, it's an improvement same 50% threshold. And the reason why these standards are significant is if your home is substantially damaged, then you could be triggered to come into compliance with floodplain regulations. So in the special flood hazard areas, you could be triggered to have to elevate your home above base flood elevation, which is very expensive, but also very important if we're trying to avoid this problem of repeatedly rebuilding the same properties. So these damage standards could be enhanced if they were to calculate damages cumulatively. So instead of just having a 50% threshold, say you get damaged 25% one year and then 25% three years later, or 26% say you go over the 50% damage and then this would be triggered. So you're making note of this repetitive loss. Also, the 50% threshold is fairly high. A lower threshold would obviously force homes to come into compliance sooner. The graphic I have up here is of homes in Galveston, Texas, that were exposed to five feet of floodwaters and the red homes were found to be substantially damaged. The green homes were not. And this kind of raises an issue of enforcement that happens on the ground. It's difficult to tease out if really all those green homes were not substantially damaged if they were exposed to that same five feet of floodwaters. There's definitely a high incentive to low ball the assessment of the damage because you don't want to saddle folks with these high costs, but if a cumulative damage standard would make it a little harder to have low balling, have folks avoid this trigger because you couldn't just say up it's 45% damaged, you would have a second damaging event in a number of years, and that would bring it over the threshold. So for communities that are interested in changing these standards, the community rating system operated under the NFIP does provide a discount on flood insurance premiums for communities that undertake more ambitious standards, including cumulative and lower threshold standards. We were able to get some data from FEMA that's not publicly available that shows at least as of 2013, there are roughly 400 communities receiving credit for a cumulative damage standard, 25 for a lower threshold standard. So obviously there's room for a lot more communities to follow suit. States can help encourage the adoption of these more rigorous standards by making this language part of their model flood ordinances and an initial review of state model flood ordinance has found at least 12 states that mention these higher standards as a second option and seven states which mention them as the default to have these higher standards. This is some language which I'm not going to take the time to get into in detail right now, but just kind of showing how you might set up a 40% market value threshold and then might also add language in there for the model flood ordinance of saying perhaps during a 10-year period you would look at flood events that having at least two flood events that equal or exceed 20% of the market value and damages. And of course I should touch on the fact that this is a very expensive process for homeowners to elevate their structure. There is of course the benefit of these reduced premiums for communities that enter the program as well as ICC, increased cost of compliance funding of up to $30,000 to help folks. It's still potentially not enough. In a forthcoming paper we talk a little bit about opportunities to use parametric insurance, insurance triggered based on the nature of an event and also catastrophe bonds by municipalities to maybe start financing some of these changes but there's definitely financing issues and equity issues that need to be addressed if we're adopting these higher standards to make sure they're done fairly. And the last solution I'm gonna very briefly touch on would be increasing the prevalence of state flood risk disclosure laws. So laws that when you sell your home you have to disclose the flood risk to the buyer which I was surprised to find out, you might be surprised to find out it's not something that you necessarily have to do in most states. So there's an interactive map up on NRDC's website that shows some of the data we collected. In regards to this there are 21 states that lack statutory or regulatory requirements of any nature from what we could tell to disclose a property's history of flood damages or its location in the flood plain. 29 states at least required at a minimum that sellers disclose that the property's located in designated flood plain before the point of sale but only 10 states had additional requirements to disclose whether there'd been any flood damages to structures on the property which you have home buyers making this really one of the most important financial decisions of their lives and if you don't have the information out there they can't make decisions to reduce their risk so that information and transparency could be highly beneficial. Also one thing that states could do in this space is to work on filling loopholes. In New York you basically just can pay $500 and then you don't have to meet your disclosure requirements in New York. There seems kind of fitting, right? There are also loopholes in many states in regard to foreclosures. So that's another way to kind of get out of disclosing. And I think that's probably about as much time as I'd left myself to speak. So I think we might have a few minutes for questions. Two questions, awesome. But I'm around if people want to talk to me separately later. Thank you. So with regards to the substantial damage issue did you examine at all how we could try to address the fact that that substantial damage threshold itself automatically brings up an equity issue because it's triggered much more easily by a house that has a lower value than a higher value house. Yeah, we definitely acknowledge that and it's definitely a problem. It's very hard to figure out what can be done about that other than as I was saying, try to ensure that there's complimentary policies in place to make sure that there's adequate financing for communities that are triggered by the standard. I don't know if you're looking for a more detailed response, but. I think you can give us, as appreciated. Nina, the National Flood Transfer Program as I'm sure you know is scheduled to run out of Monning and expire at the end of this year, so it needs reauthorization, it needs funding. Several bills, in question, one large bill passed the Republican House last year, not favored by the Democratic Party, it was privatized, it was an open mess. But to what extent do you think it's possible, I think a lot of people would like to get behind a national effort to positively change the Flood Transfer Program. You mentioned a couple of ideas here. Right. Is your group, or any of them, if you're aware of promoting a particular, here's how you can make this program great again, an idea for the flood insurance? Make NSIP great again. Yeah. Yeah, so as I mentioned, we're partnered with the Natural Resources Defense Council on this work, and we've been trying to develop model legislation and to kind of try to, and NRDC particularly has been trying to work with their contacts to see how we can have pilot programs or work some of these other solutions into national legislation. There's been some blogging by NRDC actually on trying to argue for some proposals as we're trying to reauthorize the program. So, stay tuned, we're trying. Just a quick note to add to that, Dennis. If you want some really good existing policy recommendations for NFIP, the Association for State Floodplain Managers has a really good website where they have detailed policy recommendations on NFIP and their suggestions for what should be included in NFIP reform. All right, so I can probably adjust this for me and our next speaker. Our next speaker is gonna discuss some of the infrastructure and sea level rise issues that local governments are facing regarding maintenance. Thomas Rupert leads the Florida Sea Grant College programs coastal planning program. Through this program, Thomas, a licensed attorney, works with partners to develop legal and policy analysis for local governments on planning for sea level rise, community resilience, and associated long-term challenges and opportunities for Florida's coastal communities. Thomas. Thank you so very much, Julia. Great pleasure to be here. And I just really wanna say thank you to Roger Williams School of Law and to the Rhode Island Sea Grant program for putting on such a wonderful program today. And I saw a quick exodus there. I hope that's not because of me, so we'll find out. Oh, class, good. Then I have a, that makes me feel much better. So let's dive right in. This is, you know, to comfort you. It looks like this is gonna be easy, right? So just four quick points. You got some context. Then I wanna look at infrastructure as legal liability and do a case study more in-depth on a case that Elena mentioned. And then look at something that I haven't heard anyone talk about very much, not only here, but generally, which is how are we gonna clean things up when we lose areas? Before I start, I'm gonna wanna acknowledge that there is, who here feels like they got everything they could have out of Elena's legal presentation? Yeah, that's what I thought. This stuff is dense enough where you can hear the same thing over and over again I've discovered, because I do a lot of work with local governments. And so there's gonna be tremendous overlap. So hopefully a little more of it will sink in the second time around. So with that, I'm gonna set a little context here by first acknowledging everything you see here is representative of what so far local government seem to be thinking about when they think about sea level rise. What do you do? Well, you do something infrastructure-based to try to protect from it. So here you've got an example on the far right. There's a big duck bill valve to prevent. Ocean water from backing up into a drainage system to help it function better and keep from flooding neighborhoods. You've got in the lower left there, you've got a stormwater injection pump down in Key West trying to deal with their stormwater problems. And then in the upper right, you've got my personal favorite. See how that taxi's sitting at a bit of an angle there? That's where the transition point is temporarily where they're elevating roads in Miami Beach. A half billion dollars they're spending on elevating roads and installing pump systems in a small barrier island that's, I think, seven square miles. So half a billion dollars for a project that, yeah, even by their best estimates, most optimistic estimates might last 20 years. So that leads me to what I simply start these present. I used to start with the science and go over sea level rise and history and the projections. I don't bother with that anymore because most of the time now I'm trying to talk to local governments that accept enough of the science that we can get right to the heart of the policy matters. And I think one of the fundamental facts that I start with now is that we're not gonna protect everything. Miami Beach is gonna try and they're gonna succeed for a while probably. But again, who else as a local government can leverage half a billion dollars in the span of what? I think they raised that in about three years, four years maybe. Not many people have, not many local governments have that sort of bonding authority. So we have to, as we lose places, it's something we haven't really usually done. So who shoulders those losses? Why and how are they gonna do it? And of course, local governments are right in the middle of all of this challenge and they've got conflicting interests. On the one hand, they clearly wanna protect the health and safety of their constituents and try to avoid some risk. On the other hand, we can see that they've also liked to grow their tax base and grow. They wanna avoid legal liability and of course there are lots of complications always with politics at the local level. If that weren't complicated enough, as was noted, you've got these 12 little words in the Fifth Amendment to the US Constitution, the protections of private property and how this is interpreted as a great impact on what local governments do and are willing to do or not do. So that is some context for us. With that as context, let's jump into a first type of infrastructure I wanted to look at is drainage. So a colleague and I started asking the question, if you're a local government, you own a drainage system. And that drainage system either isn't working as well as it used to because of increase in sea level rise or it's actually literally allowing flooding because it's become the conduit by which the ocean backs up into neighborhoods. What is your potential liability as a local government for flooding damages that result? And when we started this, one of the interesting things that we discovered, and I think most people don't realize is at least in Florida, there's no obligation on the part of local government to provide drainage. And I would bet that's probably true in most of the states here in New England as well. There's not an outright obligation to do that. But of course, since no good deed goes unpunished, once you have started to provide drainage, you now have that legal liability that Elena mentioned that you now have to do reasonable maintenance on that to make sure that nobody suffers harm from your lack of maintenance. And while you have a legal liability for that maintenance, you don't have a legal liability that forces you to upgrade infrastructure. And so you might ask, well, why is that? Well, I think it's pretty clear from a policy perspective, if you've already got an infrastructure system in place to do drainage for a neighborhood, people have probably come in there, they've built there, they depend on that infrastructure to be operating. But of course, you can't move into an area and then demand that the local government upgrade that infrastructure. You moved in without it there. Why do you expect the local government to now have to provide it? Part of the reason also goes to something that was kinda mentioned, I think, briefly in Elena's, but I wanna focus even more on, which is the idea of separation of powers. So if you go back, what was it? Maybe eighth grade civics class or something? Maybe earlier where you learned about the fact well, we separate our government into three co-equal branches, the legislative, judicial and executive. And we don't wanna allow any one of those parts of government to exercise the authority of the other parts because that's one of our checks on governmental power. And so what we get into is this idea that maintenance is just this kind of average thing that not only do local governments have to do to protect people, but it's something that even all of us have to comply with. So if you have a house and your front step is wooden and rotted out and I come visit you and step on that step and it breaks and I break my leg, you're liable. You didn't do the proper maintenance and it harmed me. So this is not an unusual, this isn't limited to local governments. So courts have no problem saying local government, you didn't do kind of this basic maintenance to protect people and now you're liable for harm that resulted from that. An upgrade is completely different because when a local government makes a decision to upgrade or not to upgrade, that local government is now exercising its discretionary authority to make a legislative policy decision. That's not something that they mandatory have to do, it's discretionary. And that is the quintessential core of the legislative duty and the legislative branch of government is to make hard policy decisions that balance competing interests. So courts give a really great amount of latitude to legislative decision making because the courts understand if we second guess them on every legislative decision, we're actually putting ourselves as the judicial branch in the shoes of the legislative branch. That's inappropriate. So that's why the separation of powers function is so, our doctrine is so important. So then that relates back to this idea of immunity that Elena discussed in some detail. So local governments again, you don't have a, you have, you don't have immunity for the ministerial simple functions that we all have to do, but you do tend to have immunity for these discretionary planning level decisions. So another type of infrastructure. Somebody spent an awful lot of money here or is in the process of spending an awful lot of money on this fancy new seawall. How does it look like it's working? You know, there are a couple of interesting things about seawalls that make them an unusual type of infrastructure. The first is just as you can see here, if it abuts to another seawall that isn't as high, it doesn't turn out to be worth very much in a high tide event as you can see here. And the second thing is, it's probably one of the most common forms of infrastructure where you're gonna have a budding private and publicly owned. So it's kind of unusual that way as well. So how do you address those situations where a low seawall might allow flooding in an entire neighborhood and maybe they're publicly or privately owned? Well, the city of Miami Beach, as they're dealing with this problem, they simply did some analysis of different projections of sea level rise and heights and they set a new minimum for seawalls. So if you go in for a permit for a substantial rebuild or a new seawall, you have to build to a new minimum height. But that doesn't really address existing seawalls that are causing problems. So Fort Lauderdale down in Florida took a really creative approach. At first, they were gonna do just what Fort Lauderdale did, but they were gonna put a certain time by which you had to bring your seawall into compliance if it was a private seawall. And of course, community got pretty upset about this and to its credit, the city did a great job of really reaching out and talking with property owners about the issue and came up with a very, very creative solution that I think is one of the best I've seen so far. They actually say that now they passed an ordinance where you can be cited for a code violation as a property owner if you allow saltwater to flow off of your property and flood public or private property. So think about that. I mean, if I own property and seawater flows over it and floods you, I can be cited by the city for a code violation. Now it's my responsibility to fix this. So they give 365 days for you to fix that. And I think it's six months to prove that you're making or maybe it's a hundred and eight. Yeah, I think it was six months to demonstrate that you're taking some action towards curing this code violation. And so it has the great benefit of really focusing money and energy on only those seawalls that are actually causing problems right now for neighborhoods. So here is just a memorandum that the city sent out to the city manager about this new ordinance and how they're complying with it. And so far, compliance has been pretty good and they've had good luck with it. And again, that's based in large part, not on the fact that it doesn't cause hardship for people and isn't expensive and a challenge, but because of the amount of outreach and out education that they have done with their community members to help them understand why are we doing this to you? Because the options were worse. So now let's go into a specific case study with Rhodes. And this is the case that Elena mentioned. And now this actually you can see in this picture, this is what just up until a couple of years ago was actually the best section of a 1.6 mile piece of what used to be Florida State Highway A1A. Do I have a pointer? Nope, apparently not. Let me see if I can, oh, we've got a mouse though. So what you can see right here is you can see this is current Florida State Highway A1A right here. But this is a realignment. Previously it was built right out here. So it was built on this little tree-less spit of sand in between the Atlantic here and the Summerhaven River right here. Yeah, that's exactly, it is pretty laughable. Yeah, well, Florida Department of Transportation built most of this segment as late as the 50s. And I think they kind of started laughing or crying themselves because by about less than 10 years after they built that section of road, they realized, you know, that was just really stupid. We're not even gonna try to fight this battle, they said. And they simply bought and knew right of way and relocated to its current configuration, at least 1.6 miles, this particular 1.6 miles. At that time, that 1.6 miles of road had three, count them, three homes on it. That'll become relevant. But before we go any further, let's just take a look at a couple pictures. So this was 2007. Now if you look carefully, oh, I didn't want to do that yet. If you look carefully, you can see what's happening. What's happening right there, there and there. Yeah, a little bit of overwash right over the beach. So there used to be some homes right down here that are now no longer there. They've been destroyed. But this is 2007, a little beginnings of overwash. There's 2010. I mean, the river is gone. There's the river, now it's gone. Made for some great pictures, but I guess I didn't throw them in this one. I've got a great picture of an aquaculture lease stuck in the sand, you know, it's terrible. So here's one of the homes that is along what used to be the road. So the road would have been right here and this is what they used to have for potable water supply. That was under the road. So that's where the road should have been. And my back was to the water as I'm taking this picture. So this was this home. I probably took it about 2013 maybe or so. There's that same home after Hurricane Matthew in 2016. So you can see it had some small dune left, just nothing after Matthew. Oh, and well, then we had Matthew in 2017. So two years in a row it got nailed and here you can see it's just frequent overwash, completely over that part of this little spit of sand. So of course this house, you know, one of the things I did is took pictures of all the broken four inch PVC lines. You all know what that's for coming out of that house. Well, these houses were all in septic by the way. Did I mention that septic? Let's see, we're about how far above water level in pure sand. Boy, yeah, permitting decisions. So again, there is what used to be the best part of that road prior to, I think this was after, yeah, this was after Matthew. And you can see the little chunks of asphalt there. That's again what's left of the road and literally every single property owner there to get to that property, you have to have a four wheel drive. You will not get anywhere in a two wheel drive there. So I mean, I talked to property owners, they were in brand new jeeps, you know. This is how we get to our property now. So of course, property owners haven't been too happy about the degrading road, far even long before Irma and Matthew. So back in 2009, a bunch of the property owners got together and they sued the county. Because they said, hey, county, you're not doing enough maintenance on this road. And you know, there are parts of the road washed away even before hurricanes on Matthew and Irma. So the county actually had to respond to that lawsuit. The trial court, the county won very easily. Because the county said, look court, this is just our legislative decision, it's a discretionary decision that we're making on how much we spend on this road. Anybody care to guess in one five year period how much more per mile per year the county expended on this piece of road as opposed to a typical county road? 25 times as much. Per mile per year. So they were spending almost $250,000 a year on average for this five year period on this section versus under 10,000 on their average county road mile. So the county was spending a tremendous amount of money trying to do something, but they were fighting the Atlantic. I mean, that's a losing battle every time. Property owners, of course, weren't happy that they wanted the city one at the county, excuse me, one at the trial court level. So they appealed to Florida's Fifth District Court of Appeals. And the Fifth District Court of Appeals said, yes, city or county, you do have a tremendous amount of discretion how you spend your road maintenance funds, but you do have to do reasonable maintenance that results in meaningful access. So reasonable maintenance sounds okay, right? We've already talked about that, that's a duty. But now they added a substantive standard, meaningful access. When you look at this picture, and again, this was even prior to Irma and Matthew, and it's you that says the local government, and you're on that commission, what are you gonna say? There was an estimate as far back as about 2006, long before things had gotten as bad as they are now, that it would have taken over $13 million for a beach nourishment project to even create enough dry land to have a place to try to build a road bed. And you're talking less than two dozen homes. To put that in a little bit of perspective, well, so it would have been over $13 million up front cost plus an average of one to two million a year in maintenance costs for, like I said, a little over a dozen homes. And to put that in perspective, the entire county's budget for road and bridge maintenance for the year 2009 was, let's see, it was $9.6 million. Oh, and that's for 1,027 miles of road and 47 bridges. And this is 1.6 miles. So you got two-tenths of 1% of your road mileage consuming more than your entire budget for one year. And then a significant portion thereafter. Does that sound like kind of your average ministerial duty that if you're on the commission, you're gonna think your staff ought to be making those decisions? I don't think so. So I mean, to me, that really brings in, this is such a strange result to me. I just couldn't understand, how can the court make that decision for the local government? And so I kind of start after reading the case innumerable times, it kind of dawned on me that they're using this word maintenance in a couple of different ways. Because again, if we go back to this picture, obviously there's no road there to maintain. You can't do that. So it just reinforces what Elena brought up and I've kind of started going into already this distinction between what is maintenance versus discretionary planning. So maintenance again, you patch it, you maybe repay that. But large scale change and upgrading, that's discretionary. And when the court was talking in that case and using the word maintenance, what the court did was sometimes they used it as this legal term of art that we've been discussing where it means this ministerial function. And other times they're talking about maintenance as you and I might in regular everyday conversation. Well yeah, you didn't maintain a road there because it's gone. I can see you didn't maintain it there. But that's different. So they were using it kind of interchangeably and I think that's part of what led to a really poor reasoning for their case there. And so to separate, we come back again to that idea of separation of powers. And I argue, brought a copy of it here. If you want the full legal analysis of this, probably not for you unless you're a lawyer, but if you want to give it to your lawyer, it'll go through this much more carefully. But again, this idea of separation of powers, I would argue that that court is on the verge of really replacing its judgment for that of the local government. And that I think is one of the crucial mistakes that that court made in this case. And also when we really look at it, if we start looking back to the Fifth Amendment and private property protections in our constitution, they don't create a legal duty for government to protect private property from anything other than the government itself. And I would argue that what these property owners effectively managed to do in this case is they took that shield provided by the Fifth Amendment against arbitrary government action and they reforged that shield and with sword that they're now using against the local government. And it brings me back to I think your comment earlier, sir, about equity issues. One of the things I discussed in the full article about this is the real equity implications of a case like this because the trial court even noted very carefully that these are educated property owners. There were doctors and lawyers and college professors. I mean, these people didn't accidentally end up there without knowing what was going on. There was 30, 40, 50 years of very clear evidence on the disappearing ground of what was going on with this road and yet they chose to purchase there. And oh, by the way, they got a lot better deal than any other coastal property because the road was either gone or in very poor condition. So they all buy there, build there and then turn around and sue a local government that has 200,000 people total. Even after the local government has expended inordinate sums of money to try to help them, they still turn around and sue them. The county was left with a legal bill of over a million dollars. And again, this is a county of 200,000 people. It's largely rural. So I mean, the inequity issues there, I would argue are rampant. So yes, then, so the case law, unfortunately that case law is now binding law precedent for every trial court in the state of Florida. I didn't even mention another problem that I discussed at great length in this article which is that that case, and Elena mentioned this, introduced completely new law into Florida that said that you could base a takings claim on government inaction. And I would argue that actually government inaction as a basis for a takings claim, there are a very small number of cases that have allowed it, but it's actually really small. And I would not characterize it as generally states allow that. One of the things that you mentioned, Elena mentioned Minnesota. One of the things I did in this article is I actually went very carefully back through all the Minnesota cases that were used to justify inaction. And what you realize is the emperor is wearing no clothes. There was abs, you know, basically one court just simply added the word inaction for no apparent reason to their case law to a case. And then subsequent court said, oh, look, it uses the word inaction. See, we can base this on inaction. And that case then kind of metastasized. And then they use that case in here. And now this case with the road in Jordan actually has been cited in the Maryland case that Elena mentioned. So it's really, really important, I think, to very carefully examine the case law that courts use, especially when the decision they come to seems to be very odd. And in this case, again, what I discovered is if you do really careful analysis of the case law, it was extremely poorly reasoned. So even though that's the case law in Florida, we've got this new federal case and Elena probably explained this enough. I'll just touch on it, but the St. Bernard Parish, again, this is the one that resulted from the flooding after Katrina and where the property owners argued that it was the US Army Corps of Engineers lack of maintenance on the Mississippi River Golf Outlet or Mr. Go that caused the flooding. So what was interesting is that since the complaint really focused on this harm from maintenance, this court said, whoa, wait a minute, if you're talking maintenance, that's not a taking's claim. Typically, if you're talking maintenance, that's standard of care. That is a tort or negligence claim, not a taking's claim. And so they simply said two things. One, violent and tort, which of course they already had, but had lost, that's why they tried to reframe it as a taking's claim. So that ended the case, but they also made very, very clear in that case, I think as Elena pointed out, that inaction is not a basis for arguing that the government is taking your property. Government only takes your property when they take it. Take is not a passive thing. It's an active thing. And they argue that you need government action to cause a taking. Okay, so lots and lots of problems, right? So what do you do about it? Road design. Well, let's start with what the Florida Keys is doing because of course now there is a canary in the coal mine, if you've ever seen one. They call it, they call the road in a, what is they say, the world's longest extension cord and garden hose because basically all their electricity and services come from the mainland. And you've got a county that's over a hundred miles long and sometimes as narrow as the road that goes out there. So what the Florida Keys is trying to do is they're trying to assess, well, what can we provide for a level of service on our roads? And so far what they've done is they adopted kind of an interim measure based on early pilot study and they have said, well, anytime we're gonna do work on a road, we're gonna try to determine what's the useful lifespan of the work that we're trying to do now. So let's say they're doing a repaving, estimating maybe 20 years, 20 year lifespan for this repaving project on the road. So they're gonna look out 20 years on the climate, on the sea level rise projections they're using. And based on that sea level elevation that they expect within 20 years down the road, they're gonna set a level of service standard where they wanna elevate the road to the point where they estimate no more than seven days of flooding per year at the end of the lifespan of that road. Initially, the county was saying, well, we want zero days of flooding. And of course, the numbers very quickly indicated you're crazy because of the cost of that. And I don't have the cost breakdowns incorporated here, but if you'd like that, I can get you the report that has it. So then they elevate to that level. But still, one of the weaknesses of this is they don't know what's gonna cost yet. Are they committing themselves to a level of service that they may not be able to maintain? So based on an ordinance passed by the local government in that road case that I discussed, I took an ordinance they had developed in response to that case and modified it some and created this Florida Sea Grant Model Roads ordinance. And rather than looking at level of service based upon how many flooding days the road might be expected to experience, I actually looked at a financial threshold. So we're used to thinking of level of service as an engineering idea. Here it would actually be financial. So it creates exceptions to LOS, that's level of service for environmentally compromised road segments. And then if you do declare a segment of road based on specific criteria as environmentally compromised, now kick in these financial limitations on what the local government would be required or able under its own ordinances to spend on maintenance of that road segment. If this happens, then you have to add signage to the road and that goes into some detail. I added that in because of some detail in tort law that we don't need to go into. And then if that work still doesn't result in meaningful access, then you could actually have the local government assisting with negotiation among property owners for access. MSBU, multiple municipal services benefit unit or a special assessment. So that creates an option for the actual affected property owners to put him to advocate to the local government that they will actually self-impose assessments to generate additional funding for road maintenance. And finally it goes over some of the abandonment procedures. A little flowchart of that actual ordinance. Another thing local governments can do, I think, and this was also mentioned earlier, focus heavily on creating policies within your capital improvement plan that really focus on the longer term future. And why do you want to do this? Because that's a clear exercise of your legislative authority and what you're really trying to do to the courts is to say, yes, this is us exercising our legislative authority. That is the core of what we need to do to make these difficult decisions. Please don't interfere with it. If there's never a guarantee a court won't, but this can help. And I think when you do that, try to be very clear on integrating those limits on infrastructure expansion. Also, I guess I forgot to mention careful ever accepting things for free. That local government and the roads case there, I forgot to mention that was their first mistake. They accepted that road right of way from the state of Florida. They should have said, no way we're not taking it. They never would have found themselves in this mess. So if somebody's putting in development and they want to dedicate roads or infrastructure to you as a local government, be very careful. Again, no good deed goes unpunished. Just keep that in mind. How many people here have, I want to see a show of hands. How many people are here have a lot of confidence that we as a society are going to be able to make the really hard policy decisions that avoids sea level rise becoming kind of this long, slow crisis punctuated by big disasters. Oh, okay, yeah. I thought there might be a couple of optimists here, but I guess not realists. Yeah, I tend to be in the same camp with you. That's why I started thinking about, well, what is our future coastline gonna look like? So maybe a bunch of you have heard jokes. I've made them too about, yeah, I'm gonna buy a few blocks inland and I can't wait till that's coastal property. Get it for a steal now. But think carefully about what that coastline is gonna look like as it moves inland. And is this what it's gonna look like? I guess the image that I have is, think about the problems that Detroit was having with abandoned buildings. And now think about that in a saltwater context. Debris, illegal activities, squatters. Is anybody who wants to live next to that? Imagine the water quality impact because if somebody's gonna walk away from their house because it's now literally rather than figuratively underwater, do you really think they're gonna say, oh gosh, I guess I better clean this up before I leave? I mean, if the property doesn't have value and they're walking away from it because of that, you as a local government have no leverage anymore. It's gone. Your leverage with property owners is always what? It's a lien. You can actually use a legal tool to get at the value of that property if you need to do something. But not when the property doesn't have any value. So how are you gonna, you're gonna be left holding this bag. What are you gonna do about that? General tax funds? Does that sound like a good idea? Are you gonna have enough of those by the time this is already occurring? Let's see, by this time you've probably already spent really, really heavily on massive infrastructure that is no longer working in this scenario. Because of course you were pressured politically to do so. And your revenues are probably declining. And now you're saddled with this. So a couple of possible ideas I started thinking about. Who here is familiar with surety bonds? Or just bonds? Yeah, not too many. So it's a tool that's actually pretty commonly used by government. What you've got is you've got, say the property owner, the principal I listed them as here. And it's a three way contract between the property or the property owner, the local government and a surety company. And essentially what happens is, is the property owner goes to the surety company where the, and gets a contract and pays them for a contract where the surety company says to the local government, I'll make sure that what that property owner is supposed to do under your ordinance will happen. I'm gonna make sure of it. The property owner's paid me. I'm telling you, I'm giving you my guarantee it's gonna happen. And the local government will accept that then. And it's important to note, this isn't insurance. If the surety company needs to go back and clean up that property because that property owner walked away, the surety company's still gonna wanna sue that property owner and get their money for everything they expended to do the cleanup. It's not insurance. It's just a guarantee that something's going to happen that you have to pay for. So that kind of really I think is the great weakness of it actually is that it's contract directly with a property owner. If I'm a surety company, it's already commonly used in these kind of contexts. But when you think of mine reclamation, that's a massive, probably multinational company, extensive resources. If I'm a surety company, I'm pretty darn confident that if this isn't their only mine, they've got big operations around the world, they're gonna have financial assets I can go after if they don't do what they're supposed to do. That's my guarantee that I'm gonna be able to sue them and get my money. But if you're a individual property owner and owns a house on the beach that's not worth anything, how do I know that you're gonna have the assets to pay me back? So this is probably not a viable model except for maybe on some commercial properties owned by massive companies. So even if you do try to use it in that, there are some things to consider. I think a more interesting concept and now this I will tell you, I don't know that this is ready for prime time. I haven't really done sufficient legal analysis on this yet, but the idea being, assess those properties ahead of time. I mean, the analogy is a special assessment. And what you do is you estimate what is the cleanup cost to me as the local government for this property when it's abandoned? And then you amortize that out over a certain number of years and then you start assessing the property for that so that you've created a fund that you now have access to pay for that specifically for that property cleanup. Yeah, there's administrative cost to that and it would be complex, but I think it's one of the few options that I've been able to think of for creating a revenue stream dedicated specifically to this need for cleanup. One of the big questions that needs to be addressed from a legal perspective is if special benefits assessment is the model for this, how are you gonna characterize the special benefit to that property of prospectively assessing it for its ultimate demise and destruction? That's gonna take some creative lawyering, I think. And then there's a further question is if you're in a home rule state where you have broad plenary authority to administer government, do you even need to call it a special assessment or can you simply do this under your home rule authority? So maybe you don't even need to argue a special benefit there. I think I'm getting low on time here so I wanna just jump ahead a little bit. This I think is important because it's been touched on but I wanna hit it again. Ultimately, you need to engage very, very deeply and intimately with your community. I don't care how many legal solutions we get, solutions we give you or that you develop or that anybody develops. They're gonna be costly and they're gonna be difficult decisions and there's never gonna be political will without people understanding like in Fort Lauderdale. Why are you doing this to me? And I just can't emphasize that point enough. And of course some obvious points there that you can go over as well. I wanna just touch before we stop on notice and this was mentioned in the flood insurance context but I would argue that we should be talking about it much, much more broadly. So notice or providing property purchasers with advanced notice of some of the risks and hazards that they can anticipate in say purchasing a coastal property I think is absolutely critical because coming from Florida, we, you know, you see the people, they're coming from Ohio or Iowa or goodness knows where, they don't have a real great idea about coastal dynamics. They see a property, they see the beach, they, you know, this is their retirement dream and like there are all these other houses on the beach, it must be fine, right? And they're not used to moving property boundaries. If you had cornfields in Ohio, they didn't usually move around on you very often. So you get people that just don't understand this and making sure that they do can actually potentially have some legal implications. And I'm not gonna go into depth on this because some of you may not be attorneys and it would just bore you and maybe confuse you but there is this potential for that to have implications in a court's analysis of whether or not a government regulation is a taking of private property through inverse condemnation as Elena discussed. So I kind of naively thought since there's no potential takings claim associated with providing notice to potential property purchasers, I naively thought when I started this job several years ago, that'd be a great place to start because you can do this and nobody's gonna successfully sue you for doing it. And that's true, that is absolutely true. I will stand by that one. But I had no idea of the politics. So here's an actual marker. That is on the embankment of US I-10 in Bay St. Louis, Mississippi. And that's just a commemorative marker. Right above here, right there, if you can just make it out, it's actually kind of a wavy line. That's the high water line from Hurricane Katrina. This again is the overpass over I-10. So you can see the water came up to the bottom of the overpass. And this is over three miles from the nearest body of water. So pretty amazing. And then the Federal Department of Transportation put that marker there after Katrina. What do you think Bay St. Louis officials thought about that marker? There was a great interview, radio interview I have a recording of where the mayor at the time said, look, this is some of the most valuable vacant land along the entire I-10 corridor in the state of Mississippi. And you're devaluing it with that marker there. And they argued so vehemently with Federal Department of Transportation over this that this was the result. Yeah, unbelievable. I took that picture just a couple years later. So notice, we know how to do it and we can do it well, but we don't. And that is entirely a political, not a legal question. So I'm a strong supporter of work towards making that politically viable. I live in a state where most of the state is run by, wait for it, if you don't know already, developers and real estate agents. I mean, that's what Florida is all about. It's about development. So it's really hard there. Maybe some of you in states that are less controlled by those interests will have better luck. Here are some of the references to a few of the resources that will give much more detailed information than I could go through today. Maybe a little humor if you can find this still funny. You know, I don't know about that little piggy, but with that I'll end and say thank you very much for your time. And hopefully we have a little bit of time for questions. Tom, that was great. Thank you. I wanna take you to the Gulf Coast panhandle community it was, as I understand it, pretty much wiped clean about five blocks in. Mexico City Beach. Yes. It strikes me that this is a great opportunity to use this as a model for the rest of the state. Our discussion on taking this issue was always that, of course, we must pay just compensation if the government wants property. I would offer that a small lot that is probably substandard for that zoning in that community now that has had the road wiped away, it's had the power service wiped away, the sewage system doesn't work. It's perhaps not a value list, but it can only be valued as an open eighth of an acre of beach. And now beach property does have value on its own, but certainly not the value it would have as a site for a single family dwelling. In the oral arguments for the Lucas case, when the attorney for Mr. Lucas said my property has been denied all the value of my property, little Justice Blackman raised up his hand and said, excuse me, could I see you after the hearing today and buy it for a dollar? Making fun of the argument that just because of property's value has been lowered because of storm action, it really is value less. So what about the potential hypothetical situation of the community saying we think that this would be, this entire area could become a wonderful new beach, but we're gonna have to clear out the remains of these foundations and we're gonna try and maybe on the other side of the Coastal Highway, try to make some land available for people to rebuild in a different location. Thoughts? Yeah, definitely thoughts. Pardon me, would really love to agree with you on that and say absolutely, offer them, instead of the 800,000 that property would have cost. Market value is 10,000 now. However, again, taking you back to my neant naive days of having started this job, I went out to Pensacola, which I forget now which hurricane it even was because it was a number of years ago and I think maybe Ivan and there was a seven-story condo building and it was slab on grade on the sand near the beach and with the surge with Hurricane Ivan, part of the foundation was undermined and you had this seven-story condo building with cracks running top to bottom and parts of it leaning and so I called the property appraisers office because this had been a number of years earlier and I said, so government, I was naively assuming they must have lost some real tax revenue off of this, right? Because nothing's been rebuilt and that was condemned. So I call the property appraisers office looking for data. Oh no, significantly higher value after that damage. Who runs the state of Florida and what does it live on? It runs on development. Why? Because that was an old condo building. It was probably built maybe in the 70s. So I mean, you've got maybe 12, 1500 square feet, maybe, maybe two baths. People don't want that nowadays when they're buying on the beach in the panhandle. They want, you know, 2,800 square feet in three or four bathrooms. So it was actually, it's redevelopment. That's what hurricanes really are about in Florida. It's redevelopment. This is a developer's dream. I mean, that's the mentality. So I want to agree with you but that's not what my experience tells me is gonna happen. Yeah, sorry. I'm here to cheer you up. How's that, how am I doing? Well, like I said, that's Florida and we all know it's full of wackos down there. So again, I'm not saying that you can't do better up here a bit. I have a question about the road ordinance solution and that is, have you thought about how utilities or particularly private utilities would play into the abandonment of roads? And any advice on that? No, I haven't thought about that carefully but actually if somebody's willing to do some real challenging nitty gritty research, that same case with the road, actually when I showed you the one picture I commented on the water line that was there, that was actually a section, that was privately provided system that ran underneath that public easement. So I don't know the background story of what actually happened when that system was compromised to the point where the private provider decided they weren't gonna try to fix it. I don't know anything personally about what would be any potential legal issues involved there. So unfortunately, no, I haven't considered that and I can't help you on that point. This is a Florida question because it's hard to understand Florida. If you could, I'd worry. I have a colleague at Brown and she's been looking at attitudes about value of coastal property and how people, even though all of this is coming, they continue to value the property and the appreciation is still there. And there's something back there must be in the back of the mind that somebody's gonna bail me out, i.e. the case you just showed. But when it becomes clear that this can't be sustained and this, do you see a bubble here? I mean, is there, I mean, this could be the bubble of all bubbles and there are people who study bubbles and would suggest we may be looking at that and then what is the politics of all that? Florida will be the front line. So just a question whether there's this dread in the system when this all comes crashing home. Maybe 10 years from now when the curve turns up and the rise starts to really accelerate. If you can figure that out, talk to me privately. I will find money, we'll make billions if you can figure that. Nobody knows when and why the system is gonna crash. We all have a lot of ideas and theories because the real estate value in the coastal properties in Florida is a lot like the stock market. I mean, you've kind of implicit in your question. It's based on perception. So you've got a lot of local governments in Florida, again, because of development and real estate, that are absolutely paranoid about the fact that people are gonna really understand the scope of this. They're scared of that because then you change the perception and suddenly you wonder, was it all just a house of cards and does it come crashing down around you? And again, at some point I'm completely convinced it's going to, I just can't tell you how, what's gonna be the trigger, nor can I tell you when. I mean, is the trigger going to be lack of availability of insurance driving it entirely to a cash market, which of course causes massive social displacement and back to the equity issues? Is it going to be another massive storm that finally the storm, the massive storm and damage that breaks the camel's back because the federal government just can't do it this time? I don't, is it gonna be that the bond market for local governments dries up because nobody has any faith that they're gonna be able to pay back these billions of dollars they're trying to borrow for infrastructure that's only gonna buy them a little bit of time at best? You know, I can give you a long list of possible triggers, but as soon as one of them hits, I'm pretty convinced it's all gonna happen fairly quickly because it's all based on the perceptions and the property values and the revenues generated there. So as soon as one thing comes and you crack that wall, I think it's gonna happen, I don't think it's gonna be a nice graceful slide. It's a Ponzi scheme. Yes. So I know you mentioned Fort Lauderdale and just in general these cashstrap local governments, I know I saw a news article recently about an organization talking about, or talking to Fort Lauderdale and they're considering suing fossil fuel companies and I know there's a number of different lawsuits, different types all around the country now around that. Do you see that as a viable part of a solution to just help local governments have some money to deal with some of these issues? You know, I'm actually not the best person to ask that. I think here today, I think I would probably actually defer some of my colleagues this morning and encourage you to ask them that privately. Usually when I do these kind of presentations in Florida, I've got a great friend and colleague that I do it with and she focuses very much on that and she'd, excuse me, probably enjoy your question, but I just don't feel that I have, I think there are others here that will provide better insights than I will. Do you have one more question if there's one more? Yeah, sorry to disappoint you, but I just prefer to defer to them. You brought up the municipal bond markets and I was wondering if you or maybe somebody had looked at the ratings for bonds in coastal communities and whether they reflect the risks that you described. I have not personally done any research to quantify this. I haven't even really done it qualitatively, but I can tell you two little things. First, oh, how many years now? Probably about three years ago, I'm guessing, maybe more. It was Moody's that sent a letter to a number of local governments in, was it, Virginia Beach, that's where it was, around Virginia Beach area, asking them what they plan to do about flooding. And sea level rise, because Moody's wanted to know because they needed to rate their bonds and of course the basis of the guarantee for the bonds is the property tax revenue, which means Moody's cares about their continued viability of their property tax value. So they had this like several pages of questions for these local governments about how are you planning to do this to protect that property value so that we know that you can pay back your bonds and that when we give you whatever rating that we have the good information to justify that rating. That's one. The second one is, I think it was maybe last year, where I'll tell you, Miami Beach was so happy that they were advertising how they just got a, was it like a 4A rating on their bonds? Maybe it's 3A, I forget, which is the highest rating. And they were so proud of that because they're like, see, this is what all our resilience planning is doing, is it's keeping our bond ratings high because they, I would argue, are the absolute epitome of the Ponzi scheme. I mean, you didn't hear me say that and I'm not in Florida, so I think I'm okay. Oh, there's a recording. No, I mean, their whole strategy is, we have a lot of property value to protect, pretty clear. How do we protect it? Well, we spend a lot of money. And how do we generate that money? Well, let's just keep increasing the density of development, the property value, the tax base, so that we can afford to spend more and more and more money. That's the idea. I mean, it's pretty clear. I don't think I'm making that up. I think anybody that looks at it will see that. And how long is that viable? Again, I don't know. And I don't, and I'm not even, and I guess I should caveat, I'm not even saying that's the worst thing they could be doing because maybe that's what they should do. I don't know. Maybe that's what people there really want. I would argue that the biggest challenge to that is that if there's something that we should have learned from floodplain management all these years, and we haven't, it's that whenever you start to depend upon structural protection, what you ultimately do in the long term, I would argue is you increase the amount of actual vulnerability in the long term. And all those projections, there are all these statistics that have been given today about the value of climate disasters and natural disasters. If you go back to some IPCC research, I think all that needs to be caveat. I'm not saying that, I'm not saying the natural disasters aren't becoming more powerful or frequent, but in those statistics, the IPCC a few years back actually said, look, most of that increase isn't due to the changing climate yet. It's just due to the fact that we're doing more and more expensive and expensive, more and more development in these hazardous places. So even if we had the exact same amount of natural disasters happening, we're gonna see a huge increase in the cost of them. So and I don't want that to be left out when we talk, when we focus on climate change and sea level rise. Because if there's something that drives me crazy, we love to talk in Florida about how we build, but it is the sacred cow that you do not talk about where we build. So we are gonna break now. We have lunch outside to the right. You'll see it right, right near registration. There are several locations that you can bring your lunch to so you can sit with colleagues at various sized tables. You'll see some tables immediately behind us. They'll point you to them at the registration desk. There's also the Bay View Room, which is all the way down. It's a glassed in room. You'll also get pointed in that direction. And then Room 256, which is directly across from here, is also available for sitting, for having your lunch. Please be back here at two o'clock. We'll see you then.