Quarterly Newsletter
Spring 2012
Center for law, environment,
adaptation and resources
University of North Carolina School of Law
Kalo to Retire from Active Teaching
Flatt Presents at ELI Seminar
and international environmental law, as
well as a first-year course in property and
an upper class seminar in Advanced
Property. Kalo’s academic career also
included visiting professorships at several
institutions: the University of Alabama
Law School, the Edouard Lambert Institute
of Comparative Law in Lyon, France, and
the University of Augsburg in Germany.
CLEAR-affiliated faculty member Joseph
Kalo will be retiring from active teaching
in July 2012 after 40 years on the faculty at
UNC School of Law. Kalo will continue to
be active in the N.C. Coastal Resources
Law, Planning and Policy Center and
remain as its co-director for the immediate
future. Kalo will also continue his work
with co-authors on the next edition of a
Coastal and Ocean Law casebook, and
continue to consult on a pro bono basis
with individuals or entities who have
questions about coastal issues.
When he first joined the UNC School of
Law faculty in August 1972, Kalo’s focus
was civil litigation. In his first few years at
UNC he taught in continuing legal
education programs sponsored by the
National Institute for Trial Advocacy and
served as the Southeast regional director of
the National Institute for Trial Advocacy.
Later, his teaching and research interests
shifted to environmental issues associated
with coastal and ocean resources
development. In addition to numerous
articles on topics related to ocean and
coastal resource issues, he has co-authored
a coastal and ocean law casebook, which is
in its fifth edition. He has taught courses
on environmental ocean and coastal law
In addition to teaching, Kalo is the CoDirector of the N.C. Coastal Resources
Law, Planning and Policy Center, a
partnership of the law school, the North
Carolina Sea Grant Program, and the UNC
Department of City and Regional Planning.
Under his guidance and that of his CoDirector, Lisa Schiavinato of the North
Carolina Sea Grant Program, the center has
undertaken a number of projects that
provide legal and policy guidance. These
projects include providing legal and policy
research support for the legislatively
created North Carolina Waterfront Access
Study Committee, preparing a 2009 report
for the North Carolina General Assembly
on "Legal Issues Related to Water-Based
Wind Energy," conducting a study and
writing a report for the North Carolina
Coastal Resources Commission on
"Emerging Ocean Resource Issues," and
sponsoring and conducting the annual
"Shape of the Coast" continuing legal
education programs.
Reflecting on Kalo’s teaching career at
UNC, Dean Jack Boger stated that “Joe
Kalo has not only been a wonderful teacher
of property law for two generations of
UNC Law students. He has also helped to
develop the field of ocean and coastal law,
co-authoring a leading textbook, hosting
CLE trainings for lawyers and local
officials along North Carolina’s coast, and
participating, through the N.C. Coastal
Resources Law, Planning, and Policy
Center, in the creation of important studies
and reports that have made North Carolina
legislators and executives better stewards
of this state’s precious coastal resources.”
On December 1, 2011, CLEAR Director Victor
Flatt presented a seminar on “Federal Climate
Change Adaptation: Current Efforts, Political
Debates, and Future Potential.”
The seminar was held at the Environmental
Law Institute (ELI) and examined the current
state of federal climate change adaptation
efforts, existing legal authority for further
adaptation policy, and the current political
debate surrounding the issue which could affect
federal policy making.
The event came after a series of federal attempts
to mandate the integration of adaptation
planning into federal policy making. Most
recently, the Interagency Climate Change
Adaptation Task Force released a progress
report addressing the integration of adaptation
into federal government planning and activities.
Flatt spent the Fall 2011 semester as an ELI
Visiting Scholar, presenting at this seminar near
the end of his term. An audio recording of the
event is available on ELI’s website.
INSIDE
CLEAR in the News
Events
Recent Developments
Student Articles
1-4
4
5-7
8-9
Spring 2012
UNC School of Law Welcomes Visiting Professor
found and lead Stanford University's
Fisheries Policy Project, an interdisciplinary
research project linking Stanford Law School
and Stanford's Hopkins Marine Station.
In Fall 2012, Josh Eagle will be joining the
UNC School of Law faculty as a Visiting
Professor in Ocean and Coastal Law and
Natural Resources Law. Eagle is a faculty
member at the University of South Carolina
School of Law, where he teaches courses in
property law, environmental law, natural
resources law, and ocean and coastal law. He
is also affiliated with USC's Marine Sciences
Program and its School of Earth, Ocean and
Environment.
Eagle comes to UNC with a wide breadth of
environmental experience. He is currently
serving on the National Academy of
Sciences/National Research Council
committee created by Congress to study the
environmental and economic impacts of the
BP Deepwater Horizon oil spill. He has also
testified before Congress and the White
House Ocean Policy Task Force on legal
issues related to ocean zoning and the siting
of offshore energy facilities. Before joining the
faculty at USC School of Law, Eagle helped
Eagle has authored or co-authored more than
twenty law review articles, peer-reviewed
articles, and book chapters. He is author of
the Aspen casebook, Coastal Law (2011).
Professor Eagle's most recent law review
article, Notional Generosity: Explaining
Charitable Donors' High Willingness to Part with
Conservation Easements, appeared in Volume
35 (2011) of the Harvard Environmental Law
Review. In 2009, Scientific American
magazine cited research conducted by Eagle
and several colleagues on ocean governance
in its cover story on Twenty World-Changing
Ideas. One of Professor Eagle's earlier articles
on this topic was named one of the ten best
environmental law articles published in 2006.
Prior to his career in academia, Eagle served
as wildlife counsel in the policy office of the
National Audubon Society and as a trial
attorney with the US DOJ Honors Program.
Eagle received a J.D. from Georgetown
University Law Center in 1990, an M.S. in
Forest Sciences from Colorado State
University in 1996, and a B.A. from Johns
Hopkins University in 1985.
Eagle is looking forward to joining UNC
School of Law and CLEAR’s team of
environmental law scholars and instructors.
“I am excited about working with the
impressive faculty at UNC, and look forward
to engaging with the growing pool of
students at UNC who are excited to learn
about environmental and natural resources
law in a time where issues in the field are so
critical.”
CLEAR Faculty Speak at
Festival of Legal Learning
On February 10th and 11th, CLEAR Director
Victor Flatt and CLEAR-affiliated faculty
members Donald Hornstein and Joseph Kalo
spoke at the 2012 Festival of Legal Learning.
UNC holds the 2-day Festival every year as a
CLE program dedicated to many different areas
of the law.
Flatt and Hornstein both presented at the
Festival’s Environmental Law Symposium,
which is incorporated into the CLE program
every year. The focus of this year’s symposium
was “Energy Law and Environmental Law:
Growing Connections Between Two Sides of
the Same Coin.” During the 4-session
symposium, Flatt and Hornstein examined: the
relationship between energy and
environmental law; hydraulic fracturing and its
impact on North Carolina; energy and
catastrophes; and “global warming and the
energy-environment connections of an
emerging legal regime.”
The 2012 Festival of Legal Learning also
incorporated the 6th annual Shape of the Coast
program, presented by the N.C. Coastal
Resources Law, Planning and Policy Center
(NCCRLPPC). Co-Directors Joseph Kalo and
Lisa Schiavinato presented on “ecosystem
services” and “the complexities inherent in
applying the concept in effectively managing
coastal resources.” The program examined
budget changes that will affect coastal
management in the next decade, as well as
significant federal and state coastal case law,
legislation and litigation.
The Festival was followed by a networking
luncheon that gave students the opportunity to
meet local environmental law practitioners.
Update: Professor Savasta-Kennedy’s Fulbright Semester in Xi’an, China
UNC School of Law Clinical Professor and CLEAR-affiliated faculty
member Maria Savasta-Kennedy is currently teaching “Legal Techniques”
and lecturing on environmental law in Xi’an, China under a Fulbright
award.
"China is incredibly diverse,” says Savasta-Kennedy, midway through her
semester in China. “While city views might be obscured by a blanket of
coal smog, I've also seen real commitment to renewable energy, even in
remote, rural areas. These pictures are taken in Yunnan Province on
country roads near Lijiang, where solar panels and wind turbines have
been supplying energy for over a decade."
Photos by Maria Savasta-Kennedy. From left to right: solar panels in Yunnan Province near Lijiang, Savasta-Kennedy enjoying Spring in Yunnan, wind turbines in Yunnan Province near Lijiang.
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Spring 2012
CLEAR Student Associates
Prepare Short Papers for
2012 Environmental Law
Symposium
Members of the Environmental Law Project,
a student-organized group at UNC School
of Law, recently prepared short papers for
the 2012 Festival of Legal Learning's
Environmental Law Symposium. This
year’s symposium addressed “Energy Law
and Environmental Law: Growing
Connections Between Two Sides of the
Same Coin.”
The papers explored current topics in
environmental law, and each focused on
one of the following areas: "The Intersection
Between Energy Law and Environmental
Law", "Hydraulic Fracturing and North
Carolina", "Energy and Catastrophes", and
"Global Warming and the EnergyEnvironment Connections of an Emerging
Legal Regime."
Papers were edited by second-year law
students Joan Blazich, Kate Claflin, Kelsey
Feeheley, Janie Hauser, Stephanie Murr,
David Roadcap, Asher Spiller, Dan Tracey,
Elizabeth Turgeon, Kira Whitacre and
Rebecca Yang.
ELP students contribute papers to the
Environmental Law Symposium every year.
The papers supplement the presentations
and are distributed to symposium
attendees. Past papers are available online.
Photo used under a Creative Commons license
The Intersection Between Energy Law and Environmental Law
Marta Orpiszewska: Keystone XL: Pipeline to Nowhere
Kelly Anderson: Solar Power Installations on Contaminated Lands: Community Benefits
and Regulatory Considerations
Katherine Street: Electric System Reliability and the Effects of Recent EPA RICE
Regulations
Siobhan Mukerji: A Case Study of Separation of Powers in the Energy Law Context
Matthew Pierce: The Effect of the Utility MACT on the Duke and Progress Energy Merger
Jack Lyman: We ARRA Gittin' the Smart Grid Here Soon, Y'all: The Stimulus Act and
Duke Energy's Smart Grid Development in North Carolina
Hydraulic Fracturing and North Carolina
Gabriell Vires: The FRAC Act: Policy Concerns and Potential Impacts of Congress'
Proposed Amendments to the Safe Drinking Water Act
Jonathan Ambrose: The Doctrine of Preemption and Local Hydraulic Fracturing
Regulation in West Virginia: A Narrow Legal Issue with Broad Policy Implications
Blakely Whilden: Mineral Rights in Central Appalachia: A Brief History of the Broad
Form Deed in Kentucky and Tennessee
Catherine Clodfelter: The Practice of Drafting and Interpreting Oil and Gas Leases:
Common Problems from Experienced Oil and Gas States
Energy and Catastrophes
Caroline Cress: Republic of Ecuador v. Chevron Corporation: Obstacles to U.S.
Recognition of a Foreign Judgment in a Landmark Environmental Justice Case
Catherine Phillips: Liability Caps After Deepwater Horizon
Carla Gray: Proposed Changes to Federal Coal Ash Regulations Following the 2008
Kingston Fossil Plant Coal Ash Spill
Ramona Baker: Empty Nets: Finding Compensation for Commercial Fishermen after the
Deepwater Horizon Disaster
Samantha Surles: The Fukushima Nuclear Incident and U.S. Nuclear Policy
Global Warming and the Energy-Environment Connections of an Emerging Legal Regime
Tyler Burgess: California Global Warming Solutions Act: Challenges in Implementing the
Comprehensive Global Climate Change Statute
Doug Debaugh: American Electric Power v. Connecticut: Assessing the Values and
Drawbacks of the Supreme Court's Approach to Climate Change Litigation
Holly Bannerman: Atmospheric Litigation: The Public Trust Approach to Climate Change
3
Spring 2012
Kalo Studies Emerging
Coastal Issues
A study undertaken by the North Carolina
Coastal Resources Law, Planning and
Policy Center (NCCRLPPC) is nearing
completion. Joseph Kalo and Lisa
Schiavinato, Co-Directors of NCCRLPPC,
have been engaged in a two-year study of
the emerging estuarine and inner coastal
issues for North Carolina, and presented
on its progress during this year’s Shape of
the Coast program held in February.
The study has three components:
identifying emerging natural resource
issues impacting North Carolina’s
shoreline; providing technical information
on the factors associated with these issues;
and recommending strategies for
addressing these issues.
The study committee, co-chaired by Kalo
and Schiavinato, consists of individuals
from state agencies, members of the
academic community and a representative
of the coastal development community.
The study is funded by the National Sea
Grant Law Center, the N.C. Sea Grant
College Program and CLEAR. The study is
currently in its second year and a final
report is expected by the end of this year.
Flatt Publishes Article on the
Role of Law in Adaptation
In January 2012, the Florida Law Review
published Victor Flatt’s new article on
“Adapting Laws for a Changing World: A
Systemic Approach to Climate Change
Adaptation.”
Flatt’s article examines current theories and
principles of climate change adaptation and
proposes a specific template for legal
adaptation. Flatt argues that this protocol
can be applied systematically to a broad
range of situations, and incorporates
discussions of its possible application that
took place at a 2008 CLEAR workshop on
adapting legal regimes in the face of climate
change.
The article was published in a special issue
of the Florida Law Review devoted to
climate change. "In order to raise awareness
and provide a platform for dialogue . . . on
legal problems related to the environment,
the Florida Law Review has decided to
dedicate its January 2012 issue to climate
change.” The articles address a broad range
of issues in environmental law, and
“explore various social, political, and legal
responses to the serious threat posed by
global climate change."
Are You a UNC School
of Law Alumnus?
Are you an alumnus of UNC School of
Law working in the environmental law
and policy field?
CLEAR will be profiling UNC School of
Law Alumni beginning in the Summer
2012 Newsletter. If you would like to
tell us about your career and share your
experiences, or nominate another
alumnus, send an email to
flatt@email.unc.edu.
Find CLEAR on
Facebook!
CLEAR has a Facebook page!
Like us on Facebook and visit our page
to read daily posts on recent news in
environmental law, climate change law,
and climate change adaptation, in
addition to updates on CLEAR news
and events.
EVENTS
Spring 2012 Workshop – Lunch Presentation: Adaptation and the Private Sector
Friday, March 30, 2012 - 11:45 am in Room 5046, UNC School of Law
On March 30th, CLEAR will be hosting a lunch presentation on the role
of government in providing information to facilitate private sector
climate change adaptation.
Vicki Arroyo of the Georgetown Climate Center will discuss databases
that provide information on climate change adaptation, and John
Dorman of the North Carolina Department of Environment and Natural
Resources will discuss "Technologically Advanced Parcel Information."
Dorman’s presentation will include a demonstration of IRISK, North
Carolina's new online tool for predicting risks from rising sea levels.
The presentation is being held as part of a workshop on the “Impact of
Law on Private Sector Climate Adaptation," and will be co-hosted by
CLEAR, the Georgetown Climate Center, Vanderbilt Law School,
UCLA’s Emmett Center, the Center for Progressive Reform, and the
George Washington University Law School.
This will be the first large workshop held on this important issue, and
will have participation from top legal academics in the area as well as
from the EPA, the Environmental Defense Fund, and the Environmental
Law Institute.
The presentation is open to the public, and lunch will be provided.
Photo by: Rex Turgano
4
Spring 2012
RECENT DEVELOPMENTS IN ADAPTATION LAW AND POLICY
Photo by: Hamed Saber
United Nations Framework Convention on Climate
Changes Launches “Private Sector Initiative”
The United Nations Framework
Convention on Climate Change (UNFCCC)
has launched the Private Sector Initiative, a
new database of private sector responses to
climate change.
The purpose of the database is to facilitate
private sector adaptation efforts through
the sharing of experiences and
information, and to expand the private
sector’s involvement in the “wider
adaptation community.” UNFCCC
Website.
The UNFCCC considers the private sector
to be an important partner in adaptation
because of its expertise, investment
capabilities, and capacity for innovation.
“Public-private partnerships and
cooperation with a wide range of
stakeholders is becoming increasingly
important to ensure successful
implementation,” said UNFCCC Executive
Secretary Christiana Figueres in a press
conference.
The database contains case studies of
successful adaptation initiatives
undertaken by the private sector in various
regions of the world, and includes
USAID Assists Fiji with
Adaptation Planning
initiatives by major corporations such as
Microsoft, Bayer, General Electric, and
Starbucks. “By showcasing private sector
adaptation success stories, we intend to
help both communities and businesses
become more climate-resilient and to put
the benefits and business sense of
adaptation firmly on the agenda of the
private sector,” said Figueres.
In January 2012, a team of experts from the
U.S. Agency for International Development
(USAID) traveled to Fiji to discuss climate
change and help with the creation of
adaptation plans. Pacific island nations
such as Fiji are especially vulnerable to
climate change impacts such as sea level
rise, changes in rainfall patterns and
increases in cyclone intensity.
The database contains more than 100 case
studies, with projects located in countries
all over the globe. Some of these projects
are undertaken by individual corporations,
while others were created in collaboration
with governmental and non-governmental
organizations.
The agency’s visit to Fiji is part of a
comprehensive program that helps Pacific
Island nations with critical environmental
issues and assists in climate change
adaptation planning. USAID’s Pacific
Island office opened in Port Moresby,
Papua New Guinea in October 2011.
The UNFCCC was formed in 1992 and is
the parent treaty of the 1997 Kyoto
Protocol. Today, the UNFCCC has 195
parties. Its primary goal is to reduce
greenhouse gas emissions in order to
prevent harmful impacts on the climate
system, but it also considers adaptation a
vital aspect of the response to climate
change, and a substantial portion of its
efforts focus on climate change adaptation
and education.
“The U.S. government is working with
countries and regional institutions to
improve resilience against the negative
impacts of climate change on coastal zones,
water resources, and livelihoods,” said
Gloria Steele, USAID’s Mission Director for
the Philippines.
5
During the visit, USAID met with
government officials, scientists,
environmentalists, donor agencies,
academics and NGOs. Announcement.
Spring 2012
Three States Will Soon
Require Insurers to
Disclose Response Plans
United Nations Conference on Sustainable
Development Scheduled for June 2012 in Rio de Janeiro
California, New York and Washington will
soon require insurers to disclose their
response plans for climate change impacts
such as severe storms, flooding, wildfires
and rising sea levels.
In the past, all three states have requested
voluntary participation from insurers in a
similar survey, but California
Commissioner Dave Jones believes that
more complete, accurate information is
necessary in order to inform regulators,
investors, insurers and the public. The new
requirements will apply to approximately
300 large insurers, and failure to comply
could result in fines.
These new disclosure requirements will
apply to companies writing policies worth
more than $300 million. The survey will be
implemented by Ceres, a non-profit
organization that examines private sector
responses to climate change.
“There is a high level of concern among
insurers about the impacts of climate
change that is not matched by concrete
plans to deal with those impacts,” said
Andrew Logan, Director of Ceres’
insurance program. “There is a real gap
between the risk that’s been identified and
plans to address it.”
WRI Releases New
Report on Adaptation
In November 2011, the World Resources
Institute (WRI), in collaboration with the
UN Development Programme, UN
Environment Programme and the World
Bank, released "World Resources 20102011: Decision Making in a Changing
Climate." The report discusses the effects
that climate change will have on
vulnerable areas of the world and provides
recommendations for policy makers.
The report first describes the critical need
for adaptation planning, particularly in
developing countries, and urges national
governments to consider climate change
when making everyday policy decisions. It
then examines five key elements that it
believes will lead to effective climate
change adaptation planning: public
engagement, decision-relevant
information, institutional design, tools for
planning and policymaking, and resources.
Photo by: Ramon Llorensi
The United Nations Conference on
Sustainable Development (UNCSD) will be
held in Rio de Janeiro on June 20-22, 2012.
The Conference, also known as Rio+20, will
mark the 20th anniversary of the 1992 U.N.
Conference on Environment and
Development in Rio de Janeiro. It also
marks the 10th anniversary of the 2002
World Summit on Sustainable
Development in Johannesburg.
The Conference will focus on two main
themes: how to transition to green
economies and achieve sustainable
development while eradicating poverty,
and how to improve international
coordination for sustainable development.
Topics on the agenda also include the
protection of oceans and marine
ecosystems, and the expansion of
renewable energy sources. Participants will
include governments, NGOs, the private
sector, academics, scientists and other
stakeholders.
“At Rio, our vision must be clear: a
sustainable green economy that protects
the health of the environment while
supporting achievement of the Millennium
Development Goals through growth in
income, decent work and poverty
eradication,” says United Nations
Secretary-General Ban Ki-Moon.
New Sea Level Rise Study Examines
California Wildlife Refuges
The U.S. Geological Survey and NOAA’s
Tijuana River National Estuarine Research
Reserve are collecting data from five
wildlife refuges approximately 800 miles
apart on California’s shoreline: Humboldt
Bay National Wildlife Refuge, San Pablo,
Seal Beach, San Diego Bay and Tijuana
Slough Refuge. The purpose of the study is
to obtain information on sea level rise and
vulnerability that will be useful for
adaptation planning on a local level.
Researchers are taking a “bottom-up
approach,” developing models with high
levels of detail in specific locations. The
study will collect new data at a great level
of detail, rather than using existing data,
and will establish permanent benchmarks
against which to measure future sea level
6
rise. According to Andy Yuen, manager of
the San Diego Bay Refuge, the high level of
detail and permanence of the data are two
major benefits to the study.
In addition, by studying each location with
consistent methodology and tools, the
study aims to “provide refuge managers
with information that is relevant to their
immediate locale” while also creating
“valid ecosystem comparisons up and
down California . . . allowing
[identification of] major similarities and
differences in elevation, plant communities
and vulnerability to sea-level rise and
extreme flooding events.” FWS Article.
The study is expected to cost $300,000 and
will last through September 2013.
Spring 2012
Community Radio in Bangladesh Teaches Adaptation
U.S. Global Change
Research Program
Aims to Broaden its Role
In September 2011, the U.S. Global Change
Research Program (USGCRP) released a
draft 10-year strategic plan that would
expand its scope beyond climate change to
examine other “climate-related global
changes.”
Photo by: Magalie L'Abbé
Farmers in Bangladesh are learning how to
plan for climate change via daily radio
broadcasts. Krishi Radio, a small station
funded by the U.N. Food and Agriculture
Organization (FAO), produces a two-hour
daily broadcast that addresses ways in
which farmers can adapt to climate change
and other threats to their farming practices.
large plain in the south that lies almost at
sea level. FAO Aquastat. The
encroachment of salt water caused by sea
level rise has already begun to render land
unsuitable for agriculture, and the
Intergovernmental Panel on Climate
Change has estimated that 17 percent of the
country’s delta will be submerged by 2050.
The program began in 2011 to assist rural
communities who have little access to other
forms of communication. According to
FAO, “[e]nhancing rural communication
services, such as Krishi Radio, is important
because agriculture is a major economic
industry in Bangladesh, with 74 percent of
the population farming, fishing or raising
livestock as part of their livelihood.”
Krishi Radio addresses issues such as tidal
flooding and salt ingress, and teaches
farmers about saline-resistant crop strains
that have been developed by the
Bangladeshi government. These strains
“allow farmers to continue to cultivate
areas even after they have been inundated
by seawater.” The program also introduces
modern tools such as power tillers and
irrigation pumps.
The program is run by local volunteers and
encourages farmers to stay on their land
rather than migrating away from the
increasingly problematic coastal area.
Bangladesh is a low-lying country with a
The program is produced in collaboration
with the Ministry of Agriculture and the
Bangladesh NGOs Network for Radio and
Communication (BNNRC).
Verchick and Hall Publish Article on Link Between
Adaptation and Disaster Planning
Robert R.M. Verchick, the Gaulthier-St.
Martin Eminent Scholar and Chair in
Environmental Law, and Abby Hall, policy
analyst for the U.S. EPA, have just released
an important article on the joint EPAFEMA pilot project that incorporates
climate change adaptation policies into
disaster planning.
This cooperative effort grew out of the
responses to severe flooding in Iowa in
2008 and 2010. In addition to describing the
pilot program, the article explores the
theories of how existing laws can be used
to support climate change adaptation
planning, echoing recommendations made
to the federal government’s Climate
Change Adaptation Interagency Task Force
by CLEAR’s 2010 workshop on Existing
Laws and Climate Change adaptation.
The article will be published in the B.Y.U.
Law Review 2203 (2011), and is available
on the Social Science Research Network
website. Verchick and Hall will both be
participating in CLEAR’s upcoming
workshop on the impact of law on private
sector climate change adaptation.
7
The USGCRP coordinates federal research
on changes in the global environment, and
in the past has focused its efforts on climate
change. Yet the Global Change Research Act
(GCRA), which governs the USGCRP,
requires it to address all aspects of global
change, whether or not they are related to
climate. The new strategic plan is an
attempt to better fulfill that legislative
mandate.
The GCRA defines a “global change” as a
change in the global environment that may
alter the capacity of the Earth to sustain life.
This includes changes in climate, land
productivity, water resources, atmospheric
chemistry and ecological systems. In its
plan, the USGCRP proposes to address
“climate-related global changes” that may
be linked to climate change, but where
climate change is not the main factor.
Examples include land use change,
alteration of the global hydrological cycle
and biodiversity loss.
The National Research Council (NRC), an
independent advisor to the USGCRP,
reviewed the draft strategic plan and
offered its own example of a “climaterelated global change.” According to the
NRC, the global hydrological cycle is under
stress from many factors, including changes
in land use, population increases, pollution,
urbanization, and industrialization. Climate
change contributes to changes in the cycle,
but is not the main stressor. The USGCRP,
in this example, would coordinate research
on the hydrological cycle as a “climaterelated global change.” Report.
By expanding its role, the USGCRP hopes to
“actively support society’s efforts to
mitigate, adapt, and otherwise respond to
those changes.” The plan has received
support from both the Obama
Administration and the NRC, but it is
uncertain whether the budget will allow for
the USGCRP’s expansion. In addition, the
NRC voiced concerns in its report that the
USGCRP has not offered concrete proposals
for how it would continue its current
functions while expanding into other areas.
Quarterly Newsletter
Spring 2012
RECENT DEVELOPMENTS IN ADAPTATION LAW AND POLICY
Student Articles
Durban Climate Talks Fail to Address Migration
By Caroline Cress, UNC School of Law
In December 2011, negotiators met in
Durban, South Africa for the 17th
Conference of the Parties (COP 17) of the
U.N. Framework Convention on Climate
Change (UNFCC) to discuss the
development of an international climate
treaty to replace the Kyoto Protocol when it
expires in 2020. During these talks, the
Director General of the International
Organization for Migration (IOM)
addressed the High Level Plenary, urging
governments to address the issue of climate
refugees and environmental migration.
This plea for a heightened focus on the
humanitarian consequences of climate
change coincided with the release of a U.N.
Environment Programme (UNEP) report
detailing the impact of disrupted weather
patterns on populations in West Africa. The
study examines climate-induced stressors
such as flooding, drought, and sea level rise
and their connection to humanitarian crises
such as displacement, food scarcity, and
regional conflict. The report identifies
hotspots throughout this “ground zero”
region, classifying those areas which are
most vulnerable to the human
consequences of climate change.
The UNEP report released in Durban
echoed the publication of an October report
by the UK’s Foresight Program which
considers the connections between climate
change and migration from a global
perspective. According to the report, in
each of the past three years, twenty-five
million people were displaced as a result of
weather events worldwide. Additionally,
the report predicts that by 2060, over 150
million people will be “trapped” in
climatically vulnerable areas due to
poverty and restrictions on migration. The
release of the report called on negotiators in
Durban to establish a funding mechanism
for environmental migration programs in
the context of global climate adaptation
efforts.
Despite these calls for international action
on the migration aspect of climate change,
the Durban climate talks generated little
political momentum around the issue. The
two weeks of negotiations focused largely
on overcoming the divide between
developed and developing countries’
mitigation responsibilities and little on
adaptation efforts. However, the talks did
produce some preliminary agreement
regarding the implementation of the Green
Climate Fund (GCF). The GCF was
proposed at the COP 16 in November 2010
as a mechanism to finance climate
mitigation and adaptation efforts in
developing countries. Negotiators agreed in
Durban that the GCF would exist as an
independent entity within the UNFCCC but
did not establish how the money would be
collected or distributed.
The Dutch are Making “Room for the River”
By Holly S. Bannerman, UNC School of Law
For some 800 years the Dutch have been
keeping waters at bay by constructing
higher dikes and raising existing ones;
however, climate change has prompted
government officials to reconsider this
centuries-old approach. Heavier and more
frequent rainfalls are forcing these dikes,
which confine the nation’s rivers, to
discharge an increasingly large volume of
water. In 1993 and 1995 a quarter of a
million people had to be evacuated when
water levels reached extremely high levels.
With nearly 55 percent of housing located
in areas prone to flood, an estimated 4
million people could be affected if these
dikes were to fail.
In 2007, the Netherlands adopted a new
national strategy for dealing with water,
which involves moving the country’s
largest river, the Waal. The city of
Nijmegen’s "Room for the River" plan will
create more room for swelling rivers at a
total of 39 locations. The $460 million
project involves, among other measures,
pushing a dike 350 meters inland, digging a
new channel for the river, excavating the
flood plains, and lowering the groins.
The channel will divert part of the Waal
during high water, which will reduce the
chance of flooding by allowing for a larger
discharge at the river bend in Nijmegen.
See Article. At 150 to 200 meters wide and 3
kilometers long, the channel will create an
island in the Waal. This island will serve as
the new heart of the city, becoming home to
a river park and numerous waterfront
cafes.
The project has involved demolishing
approximately 50 houses, which required
negotiations and compensation for the
property owners under the Netherland’s
eminent domain laws. Id. In response, a
number of residents and farmers joined
together to develop a solution, which has
now been incorporated into the Plan. Farms
are being relocated to dwelling mounds on
the new Overdiep Polder, which will be
available for sustainable agriculture use by
the end of 2015.
Work on the new channel is set to begin
next year. The dike, island, and new
channel are expected to be completed in
2016. The Plan has already received the
Photo used under a Creative Commons license.
“Excellence on the Waterfront Honor
Award 2011” from the Washington, D.C.
based Waterfront Center for developing
innovative water management strategies
that take care to involve the local
community in order to preserve the 2,000year-old city, its culture and historical
elements.
For more information see NOAA website
and Scientific American.
Spring 2012
Senate Bill Would Require Federal Agencies to Plan for Climate Change
By Siobhan Mukerji, UNC School of Law
On November 16, 2011, Senators Sheldon
Whitehouse (Democrat-Rhode Island) and Max
Baucus (Democrat-Montana) proposed the
Safeguarding America’s Future and
Environment Act (SAFE) Act, a bill that would
“require federal natural resource agencies to
plan for the projected long-term effects of
climate change, and encourage states to prepare
natural resources adaption plans.” Both
Senators are members of the Senate
Environment and Pubic Works Committee
(EPW). Press Release.
through which the SAFE Act’s objectives would
be undertaken. NWF Article.
The proposed SAFE Act would create a science
advisory board to encourage the use of cuttingedge scientific innovations in the battle to
preserve our nation’s resources in the face of
climate shifts. The Act will also identify
existing federal and state programs where
natural resource adaptation plans are already
underway, such as the State Wildlife Action
Plans and Coastal Zone Management Plans,
Senators Whitehouse and Baucus were inspired
to cosponsor this bill after experiencing the
negative effects climate change has already had
on their home states. Senator Whitehouse of
Rhode Island, the “the Ocean State,” has
described temperature increases in Narragansett
Bay, increased precipitation and storms, and a
rising Rhode Island coastline. Id. Paul
Beaudette, a member of the National Wildlife
The legislation would establish planning
requirements such as the development of a
coordinated national adaptation strategy and
will greatly encourage state-specific adaptation
plans. The goal of this planning is to reduce
government agencies’ long-term costs by
discovering the most effective and efficient way
to guard the nation’s natural resources against
the impacts of climate change. Press Release.
Federation board and a resident of Rhode
Island, agrees with Senator Whitehouse that the
preservation of natural resources in the face of
climate change is essential to Rhode Island’s
tourism economy. NWF Article.
Similarly, Montana’s economy is greatly reliant
on tourism surrounding its natural beauty.
Sterling Miller, a senior wildlife biologist in the
National Wildlife Federation’s Northern
Rockies and Prairies Regional Center in
Montana asserts that “[w]ildlife is Montana’s
brand.” Rapid climate change poses a great risk
to many of Montana’s citizens who depend on
thriving wildlife populations to maintain both
their careers and their way of life. Id.
The SAFE Act has received broad nationwide
support from conservation groups, sportsmen,
and the outdoor industry. The bill was referred
to the Committee on Environment and Public
Works on November 16, 2011.
The National Fish, Wildlife, and Plants Climate Adaptation Strategy
By Catherine G. Clodfelter, UNC School of Law
In January 2012, the Department of the
Interior, the National Oceanic and
Atmospheric Administration (NOAA), and
the New York State Department of
Environmental Conservation released a
draft of a national strategy aimed at
preparing for and reducing the impacts of
climate change on fish, wildlife, and plants.
The plan came as a response from
Congress’ request in 2012 calling for a
unified national strategy and set of goals.
The focus of the plan is on fish, wildlife,
and plants of the eight major ecosystems in
the United States. Detailed in the draft are
descriptions and information about climate
change and how it may specifically relate to
wildlife activities.
Strategies focus on ways to mitigate and
reduce vulnerability of the wildlife and
their ecosystems, placing emphasis on
resistance, resilience, and transformation.
The draft also proposes immediate goals,
and ways different sectors can collaborate
to meet those goals.
The Steering Committee, which is in charge
of the initial development of the plan,
includes representatives from sixteen
federal agencies, five state agencies, and
two tribal commissions. While many
federal agencies are involved, the plan
emphasizes the collaborative, national
nature of the work. The draft lays out the
goals of the strategy and emphasizes the
need for a unified approach across the
nation.
The plan acknowledges not only the need
to engage different sectors of the
population, but also the general public. In
addition, the plan intends to demonstrate
the necessity of urgent response for
adaptation and mitigation efforts by
focusing on the short term of the next five
to ten years.
While it is an important step toward
creating a unified, national response to
climate change, the draft is limited to
information and enabling efforts only.
There are no mandatory or suggested
regulatory actions. It is intended as a
“roadmap for decision makers” when
considering how climate change may
impact their activities. Draft Plan.
Public meetings concerning draft revisions
were held in five different locations
throughout the country, and comments on
the draft were accepted through March 5,
2012. The final strategy is scheduled for
release by June 2012. For more information
about the plan, see the NOAA website and
the full draft.
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