A Three-Legged Stool on Two Legs: Recent Federal Law Related to Local Climate Resilience Planning and Zoning

Notwithstanding a critical gap between climate change related risks and preparedness in the United States, congress has yet to pass any federal law expressly addressing climate change hazard mitigation (or any other aspect of climate change) and appears unlikely to do so anytime soon. Despite this, the first half of 2015 has seen a number of actions in the other two branches of the federal government with significant implications for local hazard mitigation planning, zoning, and development. Of particular note, and as discussed in more detail below, the President issued an Executive Order and the Federal Emergency Management Agency (FEMA) issued draft guidelines that have the potential to affect many state and local actions by, among other things, expanding the federal floodplain boundary. In an apparent shot across the bow to states that are, at best, failing to acknowledge climate change related hazards, and, at worst, erecting obstacles to climate change hazard mitigation, FEMA also issued guidelines that could, in effect, force state governments to plan for climate change or risk losing federal disaster funding. The White House Council on Environmental Quality (CEQ) issued new draft guidance that advises federal actions on climate change and the effects of climate change on federal actions. The CEQ draft guidance appears to have been issued in response to, among other things, criticism that the federal government is providing insufficient support to local decision makers who are primarily responsible for the planning and development of the nation’s infrastructure. The Department of Housing and Urban Development (HUD) continues to provide incentives for state and local climate resilience initiatives in the form of grant money and, more recently, a competition. And, on May 1, 2015, nearly ten years after the catastrophic flooding of New Orleans from Hurricane Katrina, the Court of Federal Claims issued an opinion that increases the specter of municipal liability for failure to mitigate climate change related hazards.