346 AAssignmentsReading 4 Ch 2&8 BRT

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L A W Y E R U P

When a group of senior officials from the Department of Homeland Security visited Utqiagvik, Alaska, in 2012, the mayor hosted a dinner at Pepe’s North of the Border, which surely served some of the best Mexican food in the Arctic.1 Edward Itta was the long- time mayor of Utqiagvik, the northernmost city in the United States and home to the Iñupiat indigenous community. As the evening drew to a close, Mayor Itta shared his memories of what life used to be like in Utqiagvik. He described in poetic terms the changes that had come to the land where he grew up. The winter sea ice that had once formed along the coastline had grown thinner, and it disappeared earlier and earlier each spring. Ice cellars that had long ago been dug deep into the permafrost to store whale meat had begun to thaw, and the grasses moved farther north each summer. Itta lamented the vast changes his community had already experienced and expressed worry about the changes the warming temperatures might yet bring. Rising temperatures have contributed to the altered landscape Mayor Itta described. Indeed, the Arctic is warming twice as fast as the rest of the world.

Given the wrenching shifts already occurring in Alaska, it’s not surprising that the state gave rise to one of the first lawsuits filed in the United States over climate- related damages. The village of

Building a Resilient Tomorrow: How to Prepare for the Coming Climate Disruption. Alice C. Hill and Leonardo Martinez-Diaz, Oxford University Press (2020). © Oxford University Press. DOI: 10.1093/oso/9780190909345.003.0003

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Kivalina, population four hundred, lies south of Utqiagvik and occupies some four square miles (10 km2) on the tip of a barrier island off the west coast of Alaska. The village is so small that it doesn’t appear on many maps of the state, much less of the country. In 2008, the town of Kivalina filed a lawsuit against two dozen oil companies in federal court. Residents claimed that by contributing to greenhouse- gas emissions, the fossil fuel giants had added to the impacts of climate change that were now threatening the village— namely, the loss of sea ice and increased storms and flooding.2

Central to Kivalina’s lawsuit was the question of who will pay for the damage and disruption caused by climate change. Indeed, the core issue in most lawsuits dealing with climate change damage boils down to the question: Who pays, and how much? These lawsuits seek not only monetary compensation for lost homes and endangered livelihoods, but also compensation to cover the cost of building resilience against the future impacts of climate change.3 In the absence of government action to address climate change, either by a legislative body or a government agency, the answer to the question of who pays lies with the courts. Neighbors, children, homeowners, insurance companies, and others have turned, and will continue to turn, to the judicial system to extract an answer to that fundamental question.

The quest for an answer can lead to more than just dollar payouts— it can push government policy and private action toward greater resilience. In legal systems that rely on “precedent,” such as that of the United States, judges use principles established in earlier cases to decide subsequent cases. A lawsuit that breaks new ground can set a precedent that may not only determine the outcomes of subsequent lawsuits but also influence the behavior of those seeking to avoid being found liable in the future. This chapter explores how litigation over the harm caused by the impacts of climate change

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could offer greater clarity on who should pay damages and thereby spur decisions to invest in resilience on a large scale.

FORCING THE GOVERNMENT TO ACT

When it comes to climate change impacts, governments have al- ready found themselves sitting at the defense table in the court- room defending a climate- related lawsuit. Those seeking to sue governments face barriers because governments enjoy legal immu- nity. But if an exception to governmental immunity can be found, lawsuits against governments could drive some of the most signifi- cant resilience efforts.

The climate lawsuits against governments that have garnered the most media attention have sought to force action to cut greenhouse- gas emissions. Brought by children, farmers, and others, the lawsuits do not seek monetary damages; they seek immediate government action to protect against increasing harm from climate change. As of this writing, courts have generally declined to allow these lawsuits to go forward, concluding that policy issues of this magnitude are better left to legislative bodies than to the views of any one court.

That wall may have begun to crack in some jurisdictions. In 2015, Ashgar Leghari, a twenty- five- year- old law student and farmer in Pakistan, sued the Pakistani government to force action on climate change. The appellate court found in Leghari’s favor and ordered the government to increase its focus on the issue, even appointing a commission to monitor the government’s progress. In 2018, a Dutch appellate court upheld a lower- court order instructing the govern- ment to reduce its emissions by at least 25 percent. And in 2015, eight kids and the climate scientist James Hansen sued the US gov- ernment in federal court. In Juliana v. United States, the kids asserted

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that the government had known about the destabilizing impacts of climate change for over fifty years but had done nothing to stop carbon emissions from escalating to levels unprecedented in human history. Although the trial judge recognized that the case was “no ordinary lawsuit,” she ruled that it could go forward.4 Despite the dismissal of similar cases brought by children in other locations, as of this writing, the Juliana case remains active.

It’s too early to tell whether the litigation strategy of broad- based lawsuits against governments will lead to widespread action, be it to cut emissions or increase resilience. In the cases that have met with success, judges have recognized the existential magnitude of the problem. As the court in the Pakistan case succinctly summa- rized it, climate change “is a defining challenge of our time.”5 With the physical manifestations of global warming becoming ever more apparent, litigants will undoubtedly continue to push on the court- room door for relief.

GETTING THE GOVERNMENT TO PAY

A strategy that may bring more immediate results is the pursuit of monetary damages from governments. Although this litigation strategy is still being tested, the mere specter of such judgments can send shivers down the spines of both government agencies and the courts, since liability could be almost limitless. A case stemming from unusually heavy rains in Chicago illustrates a single lawsuit’s potential to prompt large- scale change in government behavior.

In April 2013, so much rain pelted the Chicago area that the then- governor Pat Quinn declared a state of emergency. A short time later, the Illinois Farmers Insurance Company (IFIC) filed a class- action lawsuit on behalf of its policyholders. It sued close

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to two hundred local municipalities and agencies in and around Chicago’s Cook County for failing to prepare their stormwater drains and sewers adequately.6 IFIC alleged that the flood waters in question overwhelmed the systems and pushed water back into people’s homes, causing substantial damage. The insurance com- pany claimed that the municipalities should have upgraded their stormwater plans because they knew that “during the past 40 years, climate change in Cook County has caused rains to be of greater volume, greater intensity, and greater duration than pre- 1970 rain- fall history evidenced, rendering the rainfall frequency tables em- ployed [by the municipalities] inaccurate and obsolete.”7 IFIC demanded that the cities and agencies reimburse it for the payouts it had made to policyholders as a result of the rain damage.

Within a few months, for reasons unrelated to the merits of the case and undoubtedly much to the relief of the municipalities, IFIC changed course and withdrew the case. The complexity and scope of the lawsuit would have made it difficult to prosecute and expen- sive for all the parties involved, but the lawsuit had sent a clear mes- sage. In a press release, the company expressed its hope that the suit would encourage cities and counties to do more to protect against future flooding.8 Had the suit gone forward successfully, it could have been a landmark case, forcing municipalities to better manage increasing storm water.

The Texas Supreme Court also flirted with making governments pay for their failures to address flooding risk, only to back off when the full implications of doing so became clear. About a year before Hurricane Harvey submerged Houston under more than four feet of water, several hundred homeowners had sued the Harris County Flood Control District, which includes Houston. They claimed that the district had approved development without implementing miti- gation measures to address known flood risks, and that flooding had

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subsequently damaged their homes.9 Initially, the Texas Supreme Court agreed with the homeowners.

The flood district immediately asked the court to reconsider its ruling and peppered it with more than a dozen friend- of- the- court briefs from organizations representing local governments that op- posed the decision. These organizations raised concerns that the court’s ruling would open a Pandora’s Box of endless liability for gov- ernmental entities. One brief described a hypothetical scenario that the Texas Supreme Court later found particularly “disturbing”: in a future lawsuit, homeowners could sue the government for damages from a hurricane caused by global warming on the theory that the government had caused the damage by issuing permits allowing the production of fossil fuels and the construction and operation of power plants that burn them. On reconsideration, the Texas Supreme Court concluded that ruling in the homeowners’ favor would “vastly and unwisely expand the liability of governmental entities” and, in a rare move, reversed itself.10 The unfortunate result of this opinion is that Texas counties may continue to approve pro- perty development without taking future flood consequences into account.

Similar litigation has been launched in other countries. In 2016, Canadian homeowners sued the government for damages, alleging that the authorities had failed to avert “foreseeable flooding.”11 They claimed that Ontario’s Ministry of Natural Resources and Forestry did not take sufficient action to manage higher water levels in sev- eral lakes. Historically, the lakes had not been the cause of much flooding, but beginning in 2010, that changed. After heavy flooding occurred in 2016, the homeowners alleged that the Ministry had failed to act when the lakes reached dangerously high levels. The overflowing waters destroyed structures, causing significant losses; the homeowners sought C$900 million in damages. Yet the lead

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plaintiff dropped the case in 2018 after the Ministry provided doc- umentation that convincingly showed that the lake managers had acted reasonably.

None of these cases has yet delivered the funds the plaintiffs were seeking, but that does not mean they were not successful in one re- spect. They have put local governments on notice, alerting them to the very real possibility that courts may one day hold governments accountable for inadequately preparing for the new extremes brought on or exacerbated by global warming. This expanding body of climate- related lawsuits may well have significant implications for the choices governments make in a warming world and may lead to greater resilience.12

FORCING FOSSIL FUEL GIANTS TO PAY?

Litigation has changed behavior and public policy in the United States before. Many Americans are too young to remember that smoking was once considered benign, perhaps even healthy. People were dying from lung cancer, but the connection between smoking and cancer was not widely understood. It took decades of litiga- tion against tobacco companies to correct the public’s perception. Lawsuits against tobacco companies began as early as 1954, when a widow named Eva Cooper sued the tobacco giant R .J. Reynolds claiming it was responsible for her husband’s death from lung cancer. She lost the case; for the next forty years, smokers and their families mostly lost such cases against the tobacco companies.

The tide finally began to turn in 1994, when the governor of Florida, Lawton Chiles, signed into law legislation that precluded tobacco companies from defending themselves with the argument that smokers assumed the risk of smoking. The state had concluded

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that it was time the cigarette manufacturers paid for smoking- related illnesses rather than the state of Florida. Other states followed, and smokers soon began to win in court. These legal efforts culminated with forty- six state attorneys general uniting in litigation to recover the rising public health costs from smoking. Eventually, the tobacco companies and the states settled for a mind- boggling $246 billion, the largest settlement in US history.

It took close to a half- century of legal wrangling for a smoker to win a significant verdict against a tobacco company. The smokers first had to overcome numerous legal hurdles, including the need to trace specific damages to specific manufacturers and to prove that a particular tobacco company “caused” the injury. Smokers also had to contend with conflicting scientific reports and the notion that they “accepted the risk” of smoking. But they were finally able to surmount these hurdles. Public understanding of the dangers of smoking increased dramatically, as did government efforts to pro- tect public health. In subsequent years, rates of smoking decreased markedly, with visible gains in the health of the population.

Those seeking damages for climate change impacts from fossil fuel companies have sought to follow the tobacco playbook. In 2017 and 2018, several subnational governments in the United States sued the fossil fuel companies for billions of dollars in damages, just as little Kivalina had in 2008. When explaining why New York City sued, Mayor Bill de Blasio made explicit reference to the tobacco litigation: “We wanna follow that same path, help to end climate change impacts by changing [fossil fuel companies’] behavior and get money back for the people of [New York].”13 Similarly, the former governor of California Arnold Schwarzenegger observed that suing the fossil fuel companies “is no different from the smoking issue,” and declared his intention to go after them “like an Alabama tick.”14

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At the very least, he said, the lawsuits would raise awareness and en- courage people to look for alternative fuels.

Fossil fuel companies have fought back hard, framing the battle as one that threatens the very underpinnings of democratic govern- ment. After the judge dismissed the case brought by New York City, Theodore J. Boutros, one of the defense lawyers, made his relief plain. He praised the judge for getting “it exactly right . . . Trying to resolve a complex, global policy issue like climate change . . . would intrude on the powers of Congress and the executive branch to ad- dress these issues as part of the democratic process.”15 Those suing fossil fuel companies will need to play a long game. Much is at stake, including the possibility that the first verdict in favor of a plaintiff will “set off a cascade of lawsuits” costing the defendants billions of dollars.16

Although the litigation has not succeeded in American courts as of this writing, at least one court has found fossil- fuel emitters li- able for damages caused. Germany’s largest power company, RWE, found itself on the losing end of a lawsuit filed in German courts by Peruvian farmer and mountain guide Saul Luciano Lliuya.17 Though the power company did not even operate in Peru, Lliuya sought €17,000 (roughly $20,000) worth of flood protection to pay for what he estimated was the utility’s share of responsibility for the climate impacts where he lived. He claimed that the utility’s carbon emissions had contributed one half of one percent of global emis- sions. The German company should therefore pay one half of one percent of the cost of protecting against the glacial melt that threat- ened to flood his community. A lower court had found that the case was too weak and blocked it from going forward. But in 2017, the Higher Regional Court in Hamm disagreed and allowed the case to proceed. As of this writing, the case is still active.

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In an ironic twist of fate, fossil fuel companies may also find themselves defending climate lawsuits unrelated to carbon emis- sions. These corporations are potentially on the hook for failing to protect their own facilities adequately against sea- level rise and ex- treme weather exacerbated by warming temperatures. Shell Oil, for example, found itself in this situation with regard to a bulk storage and fuel terminal it operates in Providence, Rhode Island.18 In Boston, Massachusetts, Exxon also faced a lawsuit for failing to take measures to protect its distribution and bulk storage terminal from climate impacts.19

LIABILITY AT YOUR DOORSTEP

In the coming years, as the severity and frequency of climate change- related damages grow, a new group of people will likely find itself on the receiving end of litigation alongside fossil fuel companies and governments. That group includes corporate directors and officers, architects, engineers, and others who have a duty to consider fore- seeable harm and to manage the risk.20 At issue will be whether they acted reasonably in the face of risks they knew or should have known about. If harm from warming temperatures is foreseeable, and professionals ignore the risk because they do not believe in cli- mate change, they may find themselves sitting in the defendant’s chair in a courtroom. At the greatest legal risk will be professionals who rely only on historical experience to make decisions even when credible authorities— such as the authors of the US Fourth National Climate Assessment, a congressionally- mandated analysis issued in 2018 identifying climate risks to the nation— assert that it is no longer valid to assume that future climate conditions will resemble the past.

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In such cases, judges and juries may begin to find that architects, planners, and engineers acted unreasonably when they made con- sequential decisions based on outdated information. For example, using building codes and standards that do not reflect the current and future risk of climate- exacerbated extreme weather may be viewed as falling below the standard of care required by professionals. Similarly, judges and juries might begin to find that private owners and operators of airports, toll roads, and utilities should have done more to protect infrastructure and its users given known risks from climate change. Over time, as the impacts of climate change become more obvious, judges and jurors may feel less sympathetic toward people in positions of responsibility who put lives or livelihoods in harm’s way when they should have known better. The long history of tobacco litigation illustrates how the law adjusts to new information and science over time, and how that adjustment can lead to changes in the duty of care owed by professionals.

The looming threat of liability will command ever- more atten- tion from corporate officers, directors, and their insurance carriers as well. For example, corporate directors in Australia are already feeling the heat. A 2016 legal analysis concluded that directors would be well advised at least to consider the possible effects of “climate change risks” to their businesses.21 If sued, directors and officers facing lawsuits will likely approach their insurers seeking compensation and reimbursement for lawyers’ fees. If there are gaps in insurance coverage, corporate officers and directors may even find themselves personally on the hook for damages.

The science of climate attribution could also reshape our un- derstanding of climate change liability. “Climate attribution” refers to scientists’ growing capacity to quantify the extent to which cli- mate change magnifies the severity or likelihood of events such as extended droughts, extreme rainfall, and heatwaves. Scientists can

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now determine with increasing confidence whether a particular event was more likely because of climate change, and even whether the event would have occurred at all without climate change. For in- stance, the American Meteorological Society issues annual reports devoted to explaining extreme events from a climate perspective. In its 2016 report, the society included, for the first time, scientific findings showing that three events— extremely high temperatures in Asia, global record heat, and a marine heatwave off the coast of Alaska— would not have occurred absent climate change.22 Over time, improvements in attribution science will find their way into courtrooms, and when they do, professionals will have to think twice about their decisions in a world impacted by climate change. The growing risk that judges and juries will find these professionals liable will undoubtedly push corporate leaders and professionals to consider those impacts more fully in their decision- making, leading to more investment in resilience.

In addition, liability may extend beyond paying damages— it could include criminal prosecution. French courts provided a glimpse of this risk in the aftermath of Cyclone Xynthia, which slammed into the French Atlantic coast in the dead of night in 2010. The storm killed almost fifty people and caused more than €1 billion in damage. Twenty- nine of the fatalities occurred in just two small villages, L’Aiguillon- sur- Mer and La Faute- sur- Mer. As the storm hit the villages, the waters broke through a seawall, sweeping into a low- lying depression which contained many single- story homes. The next day, France’s president, Nicolas Sarkozy, visited the site of the disaster and launched an investigation. In his words, “We have to find out how families in France in the twenty- first century can be surprised in their sleep and drown in their own houses.”23

The government eventually filed criminal charges for man- slaughter against the four- term mayor of La Faute- sur- Mer and

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his deputy. The court sentenced the mayor to four years in prison and his deputy to two years, finding that they “deliberately hid” the known flood risks to take advantage of the property development “cash- cow.”24 The court was not persuaded by the mayor’s argument that he and the town council lacked the technical resources to eval- uate storm risks.

Criminal investigators also took a dim view of the role a Florida nursing home played in the death of twelve patients. In 2017, Hurricane Irma caused the facility to lose power, leaving the elderly residents in deadly heat. The police opened a homicide investiga- tion. If more jurisdictions choose to pursue criminal charges after future disasters, they could spur government officials and others to do better at preparing for foreseeable harm caused by climate- exacerbated extreme events.

SMALL CASES, BIG IMPLICATIONS

Though the evolution of climate litigation remains unclear, it’s safe to say that the number of cases will grow, posing a set of legal is- sues that courts have never confronted before. What should the re- sponsibility of the judiciary be as increasing temperatures and their consequences upend our understanding of responsibility, liability, and justice? What sorts of precedents could be set by seemingly minor lawsuits? As the judicial system struggles with these issues, lawsuits have already begun to illuminate how a single piece of liti- gation has the potential to drive or hold back resilience.

Take, for example, the question of what a local government should do when sea- level rise repeatedly damages a section of road within its jurisdiction. Florida’s St. Johns County faced such a di- lemma in 2004, when a hurricane washed away a stretch of road.

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The County Commission faced a difficult choice: repair the road it had already been defending from rising sea levels at a cost of one million dollars, or let it slip into the sea.25 The county decided it would no longer spend the money to maintain the road. But the de- cision had very real consequences for Summer Haven, a small com- munity that could only be reached via that road. Summer Haven residents sued, and the court sided with them, finding that once the county had undertaken to maintain the road, it had a duty to do so reasonably.26 The court did not have a chance to decide what con- stituted “reasonable” maintenance before the case was settled out of court. Had the court decided the issue, the answer could have had profound implications for the many government- maintained roads that are at risk of erosion from sea- level rise.

Consider also what happened in the Harvey Cedars, a com- munity of just a few hundred people that sits on a barrier island off the coast of New Jersey. In 2010, Harvey Cedars decided it wanted to take advantage of a $25 million flood- protection project spon- sored by the government. As part of the project, the local govern- ment built a twenty- two foot dune on the property of local residents Harvey and Phyllis Karan (see Figure 2). The Karans and the local authorities could not agree on the amount of fair compensation owed to them for the use of their property and for the loss of their oceanfront view. Harvey Karan complained that in all the years he had owned the property, he had never seen “a lick of water” reach the living quarters.27 The borough and the homeowners ended up in court.

Following existing law, the trial court excluded evidence that the dunes would greatly reduce the risk of damage to the Karans’ home for the next thirty years, and the jury awarded the couple $375,000 for the loss of their oceanfront view and use of their lot. On appeal, the New Jersey Supreme Court reversed the decision, concluding

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that relying on the existing law had allowed homeowners to be paid unfairly considering that their house would also benefit from the dune protection. The New Jersey Supreme Court fashioned new law allowing for compensation that is “just to both the landowner and the public.”28 In 2013, the Karans settled for one dollar in damages.29

What happens when homeowners want to protect themselves from climate impacts, but local zoning ordinances stand in the way? When Hurricane Sandy swept through Milford, Connecticut, in 2012, it caused so much damage to a hundred- year- old house that the homeowners had to demolish it. When the homeowners went to rebuild, they wanted the new structure elevated to protect it against future flooding. The City of Milford, however, had a zoning regulation that restricted the height of homes for aesthetic reasons

Figure 2 Dune protection in front of the Karans’ home in Harvey Cedars, New Jersey. Source: Wayne Parry/ Associated Press.

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and refused to grant them an exception to the local ordinance. The case ended up in court, and the judge made the court’s displeasure with the city clear, noting that it is “an abiding principle of jurispru- dence that common sense does not take flight when one enters a courtroom.”30 The judge found that aesthetic height regulations did not outweigh the importance of elevation for public- safety reasons and deemed the city’s policy “contrary to law and logic.”

Courts will also be asked to apply existing law to new circumstances resulting from warming average temperatures. For example, a federal court in Texas found that the lack of air condi- tioning in the state penitentiary constituted cruel and unusual pun- ishment, which is prohibited by the US Constitution. Prisoners described the conditions in the prison as equivalent to “walking out to your car in the middle of the summertime” and “getting into a hot box in the sun.”31 Importantly, the court ruled that even though the prison had “no way of knowing when a heat wave will occur,” it needed to take action because “it is clear that one will come.”32 In the end, the inmates got air- conditioning. With average temperatures continuing to rise across the United States, these concerns will af- fect more and more correctional facilities that are ill prepared for the new heat extremes.

Virginia Beach, Virginia, a city adjacent to Norfolk that suffers from sea level- rise- related flooding, provides another example. The Virginia Beach City Council unanimously denied a building permit for over two dozen new homes in an area prone to flooding on the grounds that the project developer had not addressed the flood risk adequately. The developer sued, claiming that the city had unfairly increased stormwater- management requirements in the midst of his permitting process. The council countered that it had acted reason- ably to protect against future flooding. If the development went for- ward without proper stormwater protection, the cost of remediating

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the flood could fall on the city, not the developer. The Virginia courts are still considering the matter as of this writing.

As these cases reveal, litigation will drive— and sometimes impede— on- the- ground efforts to build resilience. Whether or not climate change litigation results in a seismic shift in the law, it is certain that such litigation will occupy ever- greater space on the already bulging dockets of trial courts in the United States and other countries. A 2017 report from the United Nations Environment Programme found that before 2014, climate change- related cases had been decided in only twelve countries. By 2017, that number had increased to twenty- four countries. The report also concluded that climate change litigation appeared to be growing in both ambi- tion and effectiveness, as more litigants were holding governments accountable for their actions and inactions related to climate change impacts.33 The promise of future litigation surely lies behind the ad- vice of a respected resilience expert, who told a large Washington audience in 2017, “If I were to advise my children about what career to go into related to climate change, I would say: ‘Be a lawyer.’ ”

DODGING THE BIGGEST ISSUE OF ALL?

Some judges feel the climate change challenge is just too big for the courts to take on. In dismissing the damages lawsuit brought in northern California by the cities of San Francisco and Oakland against fossil fuel companies, federal Judge William Alsup con- cluded: “The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury.”34 In his opinion, the problem demands “the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate.”35 In New York City, a federal judge handling Mayor de Blasio’s suit against the fossil

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fuel giants reached a similar conclusion. Judge John Keenan found that “the serious problems caused [by climate change] are not for the judiciary to ameliorate” and that they “must be addressed by the two other branches of government.”36

But others take a different view. Some judges and commentators argue that in view of politicians’ failure to act, the judiciary should respond and that the courts should not dodge this responsibility. The trial judge in Juliana v. United States concluded that the case raised a constitutional violation, an issue that lay “squarely within the purview of the judiciary.”37 She criticized the federal courts for being overly cautious and deferential when it came to environ- mental damage, an approach that had left the world to suffer. Judge Alfred Goodwin of the Ninth Circuit Court of Appeals provided an even more damning assessment, accusing the legal system of a “wholesale failure . . . to protect humanity from the collapse of finite natural resources by uncontrolled pursuit of short- term profits.”38 He urged courts to re- examine whether they had created too many barriers to achieving justice in environmental cases. History will judge whether US courts missed a key opportunity to help avert humanity’s impending collision with a future drastically changed by global warming. Are judges simply doing their duty, or are they dodging the biggest issue confronting the planet, or both?

Even if they fail to resolve the essential challenge of cutting greenhouse- gas emissions, the courts will surely find themselves enmeshed in litigation for years over who pays for the damage. They may help homeowners understand that flood protection is in their interest, and they may force local governments to amend their codes to permit common- sense resilience measures. In courtroom after courtroom, judges will reach decisions that can contribute to resil- ience on a large scale.

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PRESCRIPTIONS AND PROVOCATIONS

• Law and judicial associations should provide training to lawyers and judges on climate science, attribution, emissions reduction, and climate resilience measures. The American Law Institute should examine whether their authoritative treatises appropriately address the emerging legal issues presented by climate change.

• The federal government should establish a national commis- sion to recommend possible amendments to liability laws to help drive more resilience.

• Criminal prosecution offices should increase the publicity for successful prosecutions for failure to prepare adequately for climate impacts to deter others from recklessly endangering the public.