Har­vey’s af­ter­math could see pi­o­neer­ing cli­mate law­suits

‘Event at­tri­bu­tion’ set to fuel neg­li­gence claims, writes Se­bastien Malo

Bangkok Post - - ROUNDUP -

Af­ter dis­as­ters in the United States like Hur­ri­cane Har­vey, lawyers get busy with law­suits seek­ing to ap­por­tion blame and claim dam­ages. This time, a new kind of lit­i­ga­tion is likely to ap­pear, they say — re­lat­ing to cli­mate change.

That’s be­cause rapid sci­en­tific ad­vances are mak­ing it pos­si­ble to pre­cisely mea­sure what por­tion of a dis­as­ter such as Har­vey can be at­trib­uted to the planet’s chang­ing cli­mate.

Such ev­i­dence could well feed neg­li­gence claims as some vic­tims of the hur­ri­cane may seek to fault au­thor­i­ties or com­pa­nies for fail­ing to plan for such events, ac­cord­ing to sev­eral lawyers in­ter­viewed by the Thom­son Reuters Foun­da­tion.

“As ex­treme weather events and re­lated dam­ages and other im­pacts in­crease in sever­ity ... courts will in­creas­ingly be called upon to seek re­dress for dam­ages suf­fered,” said Lindene Patton, a risk-man­age­ment lawyer with the Earth & Wa­ter Group, a Wash­ing­ton-based spe­cialty law firm.

Hur­ri­cane Har­vey brought un­prece­dented de­struc­tion as in­ces­sant rain and winds of up to 210 kilo­me­tres per hour caused cat­a­strophic dam­age, mak­ing large swaths of Texas and Louisiana un­in­hab­it­able for weeks or months.

Im­ages of sol­diers and po­lice in he­li­copters and spe­cial high-wa­ter trucks res­cu­ing Tex­ans stranded by flood­wa­ter brought back painful mem­o­ries of the dev­as­ta­tion wrought by Hur­ri­cane Ka­t­rina in Louisiana a decade ago.

The US En­vi­ron­men­tal Pro­tec­tion Agency has re­jected a con­tention by sci­en­tists and the UN’s World Me­te­o­ro­log­i­cal Or­gan­i­sa­tion that the his­toric rain­fall from Har­vey was linked to cli­mate change.

Still, the dra­matic scenes rekin­dled ques­tions about the ex­tent to which cli­mate change can be blamed for such a mon­ster hur­ri­cane, be­yond broad pre­dic­tions that global warm­ing will in­crease the fre­quency of freak weather events.

This time around, sci­en­tists are in­creas­ingly con­fi­dent they can come up with answers.

Their tool is a new sci­ence, known as event at­tri­bu­tion, which de­ter­mines what pro­por­tion of a spe­cific ex­treme weather event can be blamed on cli­mate change.

It has been mak­ing fast progress over the last five years in part due to dra­matic ad­vances in com­put­ing power, said Daniel Hor­ton, a cli­mate sci­en­tist at North­west­ern Univer­sity in Illi­nois who has worked on cli­mate change at­tri­bu­tion stud­ies.

LINDENE PATTON RISK-MAN­AGE­MENT LAWYER, EARTH & WA­TER GROUP

“The de­vel­op­ment of event at­tri­bu­tion is a big deal,” he said in a phone in­ter­view.

Last year, sci­en­tists from or­gan­i­sa­tions around the world work­ing with World Weather At­tri­bu­tion (WWA), a pro­gramme co­or­di­nated by US-based re­search and jour­nal­ism or­gan­i­sa­tion Cli­mate Cen­tral, es­tab­lished that tor­ren­tial rain that had flooded Louisiana in the sum­mer had been made about twice as likely due to man-made cli­mate change.

Now, a group of sci­en­tists at Ox­ford Univer­sity in Eng­land say they plan to mea­sure how much of Hur­ri­cane Har­vey’s in­ten­sity bears the fin­ger­prints of cli­mate change. Their cli­mate mod­el­ing project, cli­matepre­dic­tion.net, is a part­ner of the WWA pro­gramme.

“There is such a high in­ter­est in Har­vey,” said Friederike Otto, the lead sci­en­tist at Ox­ford Univer­sity for WWA.

The process in­volves a net­work of com­put­ers per­form­ing thou­sands of pos­si­ble weather sce­nario runs af­ter data from sea sur­face to at­mo­spheric con­cen­tra­tion of planet-warm­ing green­house gases has been en­tered in a model, she said by phone.

If other WWA part­ners pri­ori­tise the project in their own lab­o­ra­to­ries, it could take be­tween a few months to a year to reach a con­clu­sion, said Ms Otto, who is also the deputy di­rec­tor of Ox­ford’s En­vi­ron­men­tal Change In­sti­tute.

The prospect of at­tribut­ing por­tions of ex­treme weather events to cli­mate change has lawyers sug­gest­ing that a new kind of lit­i­ga­tion is emerg­ing.

For Ms Patton, the level of cer­tainty reached in at­tri­bu­tion analy­ses means ex­treme weather vic­tims will in­creas­ingly be able to seek com­pen­sa­tion on grounds that dam­ages they sus­tained were fore­see­able. “At­tri­bu­tion sci­ence can in­form that le­gal process,” she said.

In the case of Har­vey, pos­si­ble law­suits

could tar­get gov­ern­ment agen­cies, com­pa­nies man­ag­ing in­fra­struc­ture or ar­chi­tects and engi­neers who have been in­volved in build­ing dam­aged in­fra­struc­ture, from sewage-treat­ment plants to lev­ees.

Peo­ple whose new hous­ing de­vel­op­ment is flooded — as many have been in Hous­ton’s met­ro­pol­i­tan area — may, for in­stance, seek dam­ages from mu­nic­i­pal plan­ners, she said.

Hous­ton’s ex­plo­sive growth into a sprawl­ing me­trop­o­lis — now the fourth largest in the coun­try — is widely at­trib­uted to the city’s re­laxed zon­ing that has made hous­ing par­tic­u­larly af­ford­able.

But in the process, be­tween 1992 and 2010, some 100 square km of wet­lands that act as nat­u­ral flood bar­ri­ers by soak­ing up rain­fall have been paved over or oth­er­wise cov­ered, ac­cord­ing to a 2015 study by Texas A&M Univer­sity.

“There could be an in­quiry into whether pub­lic of­fi­cials ap­pro­pri­ately man­aged land use and de­vel­op­ment in a way that met their duty to their con­stituents,” Ms Patton said.

In that sce­nario, at­tri­bu­tion sci­ence find­ings could serve to an­swer the ques­tion, “What would have hap­pened if you ... hadn’t cov­ered over those wet­lands,” she said.

In­sur­ance com­pa­nies may also seek to de­ter­mine if gov­ern­ment bod­ies that ne­glected to make flooded of­fice build­ings or strip malls re­silient to cli­mate change, for in­stance, should be on the hook for pay­outs, said Ms Patton.

Other law­suits could cen­tre around ex­plo­sions at a Hous­ton-area chem­i­cal plant af­ter flood­wa­ters cut elec­tric­ity feed­ing re­frig­er­a­tion units needed to keep tanks of volatile or­ganic per­ox­ide from com­bust­ing.

The fires led to calls for tougher over­sight even as the ad­min­is­tra­tion of Pres­i­dent Don­ald Trump seeks to roll back reg­u­la­tion.

“There could be an in­quiry that says ‘Should there have been some­thing done to up­grade the fa­cil­ity to be more re­silient to ex­treme weather events?’” us­ing at­tri­bu­tion sci­ence, Ms Patton said.

Ul­ti­mately, such court cases could pin some re­spon­si­bil­ity for wors­en­ing ex­treme weather events on to the emit­ters of cli­mate-warm­ing green­house gases, said Joanne Zi­molzak, a part­ner at global law firm Den­tons.

The Wash­ing­ton-based lawyer drew a par­al­lel with law­suits against big to­bacco com­pa­nies in the 1990s. The cases ended in multi-bil­lion-dol­lar set­tle­ments by the to­bacco in­dus­try as a con­sen­sus built around the sci­en­tific find­ing that an in­creased like­li­hood of lung can­cer could be at­trib­uted to smok­ing.

“That was a linch­pin in ac­tu­ally hold­ing these com­pa­nies re­spon­si­ble,” Ms Zi­molzak said in a phone in­ter­view.

“[Sci­en­tists] are now able, be­cause of the ad­vances in the sci­ence, to say that cli­mate change made the im­pact of an ex­treme weather event much greater. And so from there you can then look at who is re­spon­si­ble.”

At Columbia Univer­sity, Michael Burger, ex­ec­u­tive di­rec­tor of the Sabin Cen­ter for Cli­mate Change Law, said that cur­rent lack of con­sen­sus over the ac­cu­racy of at­tri­bu­tion sci­ence could, how­ever, prove a hur­dle in courts for now.

“But in a year or two year or three years ... it’s quite pos­si­ble that the sci­ence will get there.”

Courts will in­creas­ingly be called upon to seek re­dress for dam­ages suf­fered.

AFP

In this Aug 27 photo, cars are trapped in flood­wa­ter near a free­way lead­ing to Hous­ton af­ter Hur­ri­cane Har­vey caused heavy in­un­da­tion in the city.

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