FEMA's Climate Change Rule Could Make States Liable in Natural Disasters

FEMA's Climate Change Rule Could Make States Liable in Natural Disasters

Your Whispers staff, seeking the big picture on the contentious issue of climate change (see this week's cover story), consulted with Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School in New York. Gerrard has practiced environmental law since 1979 and is a former managing partner of the New York office of the international law firm Arnold & Porter LLP, based in Washington.

This world-renowned expert said FEMA’s requirement that states consider the effects of climate change if they want to receive federal mitigation money was simply “a way to protect the federal treasury by minimizing claims for FEMA money from places that don’t take adequate precautions.

“It puts some states in a bind because if they want the FEMA money they’re going to have to plan for future weather events of the sort that climate change can cause. They are not compelled to use the words ‘climate change,’ but they do need to look at the predictions for sea-level rise, extreme precipitation, extreme heat and other events that climate change is predicted to cause.”

And, since he’s a lawyer, Gerrard noted something that might give Gov. Asa Hutchinson, also a lawyer, pause: “If a state refuses to anticipate and plan for extreme events and then one happens and there’s injury, there’s the possibility that the state could be liable for refusing to plan.”

For example, Gerrard said:

“If FEMA is telling a state to prepare for sea-level rise, and it refuses to, and then sea-level rise happens and wipes out a community, the lawyers for the victims are going to be looking for people to sue. A governor who rejected a federal directive to take certain precautions could certainly become a target.”