Updated: Oct 24, 2021
Last week’s tropical storm Ida was another stark reminder of the realities of climate change and how vulnerable our infrastructure is to its impacts. New York City, New Orleans, Philadelphia, Newark, and surrounding metropolitan areas were inundated by flooding from Ida’s heavy rains which turned streets and other nonpermeable surfaces into rivers,and flooded airports, subways, and residential basements (some of them illegal conversions). The storm also broke rainfall records, some of which had just been set the prior week by Hurricane Henri.
No one who is following national politics thinks that Congress will respond to the increasing intensity of these storms with federal climate legislation. The last pieces of environmental legislation passed by Congress were the 1990 amendments to the Clean Air Act, to address new pollutants and the risk of acid rain, and the 2016 Lautenberg Chemical Safety for the 21st Century Act, which amended and updated the Toxic Substances Control Act. Even if something gets passed in the House, any new climate bill is likely to be stopped in the deeply divided Senate.
In addition to climate legislation, federal funding to states and localities to prepare them for more frequent storms and extreme weather events is crucial. Notably, President Biden’s second infrastructure bill, assuming it passes through the Reconciliation process, will provide much needed funding to upgrade the resiliency of electric grids, food systems, urban infrastructure, community health and hospitals, and transportation systems.
Fortunately, many states and local governments, including tribal nations, have been far more aggressive in addressing the climate crisis. In addition to taking individual steps to reduce greenhouse gases and promote renewable energy and energy efficiency, states have also formed alliances to scale-up their efforts. The most well-known and successful thus far is the Regional Greenhouse Gas Emissions Initiative (RGGI), the first cap-and-trade program in the United States to reduce carbon dioxide emissions from the power sector. Inspired by the success of RGGI, a group of states in the Northeast and Mid-Atlantic region are currently studying a similar program to reduce emissions from transportation.
The majority of states have not heavily legislated in this area, however, leaving local governments ample room to adopt mitigation measures to reduce their own carbon emissions and adaptation measures to cope with climate impacts. The inventory of municipal activities, infrastructure, and services that influence local emissions is significant, particularly for large cities. Local governments operate sizable fleets of motor vehicles, such as police cars and garbage trucks, and expend vast amounts of money procuring goods and services of all kinds. Municipal government buildings, power plants, landfills and waste facilities are significant contributors to GHG emissions.
Because local governments exert the most control and autonomy over their own infrastructure and municipal operations, land use regulation and building codes are among the most important powers wielded by local governments, particularly relative to federal and state control over other aspects of municipal governance. Local governments can reduce energy use in buildings, change their fleets of vehicles to be more energy efficient, and require new infrastructure to incorporate green design features. In addition, local governments exercise a great deal of authority over roadways, solid waste management and, for some, electricity supply, although federal and state governments primarily regulate these resources.
New York City passed Local Law 97, the Climate Mobilization Act, the most restrictive law of its kind in the United States to place direct emissions limits on large buildings. Emissions from buildings are responsible for 71 percent of the city’s GHG emissions. The law, enacted in 2019, aims to reduce GHG emissions from New York City’s largest buildings 40 percent by 2030 and 80 percent by 2050. The law establishes an annual emissions limit based on the building’s gross square footage and occupancy type (residential, office, school, etc.). Owners of noncompliant buildings could face the prospect of large annual fines beginning in 2030, imposed through the newly created Office of Building Energy and Emissions Performance (OBEEP) established within the city’s Department of Buildings.
The Los Angeles City Council just voted unanimously to transition to 100% clean energy by 2035. The LA100 plan would see the city replace its natural gas electricity generation with wind, solar and battery storage, while also improving energy efficiency and transmission. Attaining this objective will require increasing the use of distributed energy generation including small scale electric systems, such as microgrids, that can help accommodate renewable energy sources and improve grid’s reliability. In the wake of intensifying weather events, the transition to a smart grid is even more crucial to prevent power outages and build greater resilience during natural disasters.
Permitting and zoning, including at the local level, are key in facilitating the siting of new additional renewable energy capacity. Historically, land use regulations have been more of a hindrance than a help in the adoption of renewable energy facilities. At the same time, local governments have been somewhat successful in limiting fracking in their communities by focusing on rewriting zoning laws, narrowing road-use regulations, setting noise limits, or recognizing critical environmental areas, which are more likely than outright bans to survive preemption challenges.
Some cities have begun to exercise their zoning authority more broadly to prevent the expansion of fossil fuels infrastructure in harbors, ports, terminals or other key nodes in the system of fossil fuel transportation under their control. At least eight cities in the United States have passed zoning ordinances prohibiting the building or expansion of fossil fuels operations and infrastructure. In at least two of these cases, South Portland in Maine and Portland in Oregon, federal and state courts upheld these ordinances against federal dormant Commerce Clause challenges.
A number of local governments are committing to a transition to renewable energy sources for their energy supply. However, some state legislatures, most recently Kansas and Florida, have stepped in to void local laws restricting or prohibiting the types of energy sources utilized locally. These laws effectively prevent local governments from banning fossil fuels. Other states, like Arizona, have preempted municipal natural gas bans in new construction, invalidating portions of climate action plans from cities like Flagstaff that would have required zero-net energy construction for all new residential and commercial buildings by 2040.
Local governments are more constrained with regard to their municipal financing, control over which is often shared with state governments. However, to the extent that they have some control over local budgets, they are able to direct spending towards clean forms of energy, and can divest from fossil fuels like New York, Los Angeles, New Orleans, and Pittsburgh have announced they were doing. In some cases, local governments also can impose additional taxes on environmentally hazardous activities or adopt local tax incentives and tax abatements as a means of transitioning towards the use of alternative and renewable forms of energy.
The problem for even the most aggressive cities, and their states, is that these are long-term mitigation measures that won’t help these cities prepare for the next storm. What can local governments do to prepare for the next “water bomb”? As coastal cities like New Orleans and New York are severely damaged by hurricanes and tropical storms and western cities like Los Angeles and Portland are impacted by wildfires and heat waves, cities are shifting their attention to adaptation. Specifically, they are providing green infrastructure, building retrofitting, and solar installation to increase their resilience to climate shocks. Consider that New Orleans fared much better, in terms of flooding, during Hurricane Ida than it did during Hurricane Katrina. One reason atributable to its resiliency this time around is the rebuilding of its infrastructure to withstand the impacts of these storms--including restoration of wetlands and a multibillion dollar investment in seawalls, levees, pumps and other flood controls.
Local action is no panacea, to be sure, but in the short run it might just save us from the worst impacts of climate change.
Some of this analysis is drawn from Sheila R. Foster and Chiara Pappalardo, Local Initiatives in the forthcoming 3rd edition of Global Climate Change and U.S. Law (Michael B. Gerrard, Jody Freeman, Michael Burger eds., ABA Publishing).