April 11, 2013
National Climate Assessment and Development Advisory Committee
U.S. Global Change Research Program, Ste. 250
1717 Pennsylvania Ave., NW
Washington, D.C. 20006
Ladies and Gentlemen:
Thank you for the opportunity to comment on the Draft National Climate Assessment
Report (“Draft Assessment”). We are filing a comment on behalf of the Center for
Law, Environment, Adaptation and Resources (CLEAR) at the University of North
Carolina School of Law at Chapel Hill. CLEAR addresses emerging environmental law issues, particularly serving as a leader on the laws related to climate change adaptation. The center helps inform policymakers, leaders, and practitioners about the circumstances brought about by environmental disruption, options for legal change given this disruption, and it provides a forum for educating the North Carolina and national legal and business communities about opportunities related to these changes.
We would first like to express our support for the Draft Assessment and the conclusions contained within it. The Draft Assessment utilizes well documented scientific observations and accepted models, leading to scientifically sound conclusions. Based upon CLEAR’s expertise, our comments focus primarily on
Chapter 28, Adaptation. We agree with all Key Messages, but will specifically address Key Message #2 and Key Message #4.
Key Message #2 addresses legal impediments to implementation of adaptation actions. The impact of law on private sector adaption was addressed in a briefing paper co-authored by CLEAR Director Victor Flatt and available at http://www.law.unc.edu/documents/clear/adaptprivatesector.pdf
. The Draft
Assessment, while mentioning “that a growing number of companies are beginning to actively address risks from climate change,” p. 994, could more fully explore and systematically examine the ways legal and regulatory barriers prohibit the private sector from responding to market signals which would encourage adaptation. While one cannot totally depend on the private sector for all needed climate adaptation, it is important that the interaction between the law and private sector adaptation be examined in order to further adaptive goals.
Key Message #4 stresses that adaptive actions fulfill other societal goals. This is especially true around disaster mitigation, preparedness, response, and recovery.
While the Draft Assessment mentions the role of the states, p. 989, and that “many actions are not specifically designed to address climate change” and are focused on

planning, disaster recovery plans – how communities will recover, especially after catastrophic events - are one component of this planning that should be discussed in more detail. Rather than rebuilding in the same places with the same hazards, states can take adaptive actions during disaster recovery. A CLEAR co-sponsored research paper on the systematic analysis of state disaster recovery plans is at http://www.law.unc.edu/documents/clear/staterecoveryplananalysissandler2011.pdf.
While the Draft Assessment also notes that federal agencies can facilitate adaptive action by providing financial support, p. 989, more consideration of federal programs to provide funding to states to increase administrative capacity to plan for climate change and climate change disruption, including disaster recovery, is warranted.
Federal funding could be predicated on states using best practices to adapt, including involvement of all communities in planning, hazard mitigation, and reducing barriers to private sector adaptation. A similar model is found in the Coastal Zone
Management Act, 16 U.S.C. § 1451, et seq.
We agree strongly with Research Goal 2, located in Chapter 29, Research Agenda for
Climate Change Science on p. 1037-38, especially that research needs to be conducted on alternative institutional strategies to support adaptation, including revisions to legal codes and policy practices. Systematic review of legal and regulatory controls in light of new needs is an important tool, which CLEAR has helped implement in North Carolina, and examined nationally in the construct of the private sector. We, as an organization, would be willing to help with this critically important work.
We also would like to briefly comment on some of the factual documentation as, at least in the context of North Carolina, it may not provide a complete picture of the current adaptation situation.
On pages 591 (Southeast Region) and 875 (Coastal Zone Development and
Ecosystems), the authors mention that the North Carolina Department of
Transportation is raising the roadbed of U.S. Hwy. 64 by four feet, which includes18 inches to allow for higher future sea levels. While this is accurate, the North Carolina
Department of Transportation is contemplating other actions which contradict the recommendations of the report. The most significant of these is the replacement of
Bonner Bridge (on the Outer Banks) at its current location.
As the Draft Assessment recognizes on p. 867, coastal infrastructure and evacuation routes are increasingly vulnerable to higher sea levels and storm surges. In North
Carolina, Hwy. 12, a highway that spans the outer banks from north to south, continues to be washed out by ever smaller storms due to the landward movement of the barrier islands upon which it rests. Given the likelihood of continued and even more powerful storms, this situation will only get worse. As noted on p. 876, inflexibility of bridges can make landward relocation difficult. However, rather than

address these issues now by using an alternate bridge design, the North Carolina
Department of Transportation is moving forward with simply replacing the bridge in the same location. Based on the costs associated with bridge relocation, this not only ensures this bridge will not relocate, but that the connecting highway will remain in a suboptimal location to deal with climate change and rising sea levels. The Draft
Assessment should note that, unlike the example in coastal Louisiana given on p. 877, states such as North Carolina are not proactively addressing coastal highway and bridge issues.
The reason given for this lack of long-term vision is fiscal; building a more climate change suitable bridge, which would connect to Hwy. 12 at a location where the barrier islands are more stable, would be more expensive. However, as noted in the
Southeast chapter on p. 590, most of North Carolina is ranked “very high” on the sea level rise vulnerability map. The lack of political will to acknowledge this, much less address it, should be more fully discussed in the Southeast chapter. The passage of
H.B. 819 (N.C. Sess. Laws 2012-202), which requires the Coastal Resources
Commission and the Department of Environment and Natural Resources not to define rates of sea level change until at least 2016, provides another example of how states are choosing, for political reasons, not to take adaptive actions now. While we realize this report is not a political document, a discussion of how political choices could bring larger costs should be information to which states have access.
Thank you again for the ability to comment.
Regards,
Victor B. Flatt
Tom & Elizabeth Taft Distinguished Professor of Environmental Law
Director, CLEAR
UNC School of Law
Heather Payne
Fellow, CLEAR
UNC School of Law