Climate Change Issues to Have on Your Radar in 2022

2022 promises to be full of developments concerning climate change that will affect both the Florida business community and companies nationwide. From municipal and county strategies designed to improve the resiliency of local communities, to prospective federal regulations on the climate-related disclosures that public corporations must make, it’s more important than ever for interested parties to monitor the evolving landscape relating to climate change and resiliency issues. In this interview, John Chibbaro, Partner in Bilzin Sumberg’s Environmental Group, and Benjamin Mitchel, an attorney in Bilzin Sumberg’s Litigation Group, discuss the climate change issues on the horizon that will compel members of the business community to adapt and evolve.

Transcript:

MITCHEL: Hello everybody. My name is Ben Mitchel and I'm an attorney in Bilzin Sumberg's litigation practice group. I'm joined today for my discussion by John Chibbaro, a partner in Bilzin Sumberg's environmental practice group and the head of the firm's resilience and sustainability team. 

Now our conversation here today is going to cover some high-level issues on climate change and resiliency issues - both as they pertain to our local community - as well as at the federal and national level.

Now, John, thanks again for joining me today. And I think to get us started, what are a couple examples of topics of conversation for climate change in our South Florida community and some of the related issues?

CHIBBARO: Well, Ben, I'm happy to be here today. This is certainly a topic of interest to the world and to Miami in particular. We are ground zero for lack of a better term.

And it's a very complex set of issues, especially for this community. If we just pick one of the various resiliency issues, sea level rise, which most visibly impacts this county. It is not just a single facet. The county is a complex place socially, and not only that, the geology and geography of the county dictate how these issues flow, for lack of a better term.

And I'll use sea level rise as an example, saying it's not just what's traditionally thought of as, okay, it's flooding, a king tide flooding on Miami Beach, or maybe it is flooding sea walls. You have to think about as sea level rises in this county, multiple things beyond the flooding can occur and impacts beyond the coast can occur.

So you might not think about it, but you'll have an increase and inflow of saline water through canals - that bring this to the Western area -  that higher saline waters of the Western area of the county. The effect that has is multiple. One, it could affect the water that's used for the agricultural areas in the west side of Miami-Dade county.  Two, it could impact the saline and the consistency of the well field, which provides drinking water for the county. That's also impacted as ground water rises and sea levels rise, saline impacts could change. 

MITCHEL: It's interesting. You know, I think a lot of times when we think about these kinds of issues, climate change, resiliency, rising sea level, you know, we think about people living in, you know, big beach houses, right on the water, big high rises, you know, right there on the bay, but there's actually impacts that go well beyond just those kinds of locations. Right? 

CHIBBARO: Absolutely. And that's kind of - one of the misconceptions is that it's just a coastal issue on the bay.

Whereas in this county, one of the most vulnerable areas are those low-lying Western areas like Sweetwater that have a tremendous risk for flooding.

This turns to one of the, okay, so you have your identified risks. How do you develop regulatory policies to avert those risks or crises? As one of the responses Miami-Dade County has recently proposed raising building elevation three feet from three feet above grade to six feet.

How does that translate, across the County? In many ways that you wouldn't normally consider, but people coming from other parts of the country, developers coming from other parts of the country, investors coming from other parts of the country have to think through the impact. So there's multiple impacts.

I categorize the first as monetary. So the simple fact that you will have to invest and purchase, clean film to raise your site an additional three feet is an expense that must be factored in. 

The second is kind of practical impact. So if you have to raise your site, as we use an example, if you're in a drainage area, a drainage basin B, which is the most restrictive drainage basin in the county, you have to plan for storm water on your site to deal with it within the four corners of your site, for a hundred year storm event. So in plain English, that means you have to deal with the storm water on your site without moving it off. If you have to add three feet of elevation, you're going to have to reconsider where that storage is going to be, the depth of that storage and how it's constructed. That leaks into kind of the most pernicious impact or the social impacts.

And, if you change a development scheme, if you require additional costs, the cost of development increases. In an already stressed housing market, like Miami-Dade County, that raises the price of housing. Add to that, there's always the idea where how are you going to affect your neighbor? And then in your specialty, how does the relationships are strained when one neighbor deals with a requirement and the other does not.

MITCHEL: And you're exactly right, John. I mean, we've already seen in our county litigation about the issue you're talking about right there, which is, Miami Beach raising the elevation of streets and certain properties and that leading to flooding at other properties. Kind of the social piece that you were talking about.

But also, I think going into 2022, we're going to see, at a federal and national level, really a year of standard setting. And I think one early sign of that standard setting has been the public commentary that the SEC, the Securities and Exchange Commission, has taken to better understand what kind of information they need to provide to investors, to shareholders, stakeholders about what companies are doing to combat climate change - how they're incorporating it into their plans for their supply chain, and what kinds of statements, or misstatements, those companies are able to make publicly. And I think 2022 is going to be a really interesting year as we see the SEC zero in on this issue.

CHIBBARO: So then what's an example, I'm curious, of statements or the types of statements that public companies will be making that the SEC will be taking a closer look at? 

MITCHEL: So I think a great example is, there's this term “greenwashing,” which is really when a company, it doesn't have to be a public company, but the SEC deals with public companies, when a company makes a statement kind of overstating the extent to which their business really is sustainable or, the extent to which they've planned for future climate change and resiliency issues.

So I think, you know, you can read something that says sustainably sourced but you don't really know what that means. You know, you can read something that says we're going to cut our carbon emissions by X percent, but that doesn't really give you the absolute volume and I think the SEC is really interested in creating more specific standards that companies can adhere to.

And that will give investors and other businesses the kind of information that can really help to, you know, give people a private right of action, to give stakeholders that want to bring these actions for, to force governments to force businesses to give additional disclosures about climate change and to take specific action. 

I think the SEC waking up to this issue is really important and I think a great example, you know, of the need for standards.  You know, what I do is I'm a litigator. If you're a plaintiff's attorney bringing a negligence claim, you know, you need duty, you need breach, you need causation and you need damages.

And not only do you need those requirements, you need to understand those elements.  You need to understand the nuances of each of those elements and thus far, given a lack of decisional authority and a lack of clear standards from the SEC to date, there just aren't those same standards for interested stakeholders to bring these claims and I think 2022 is going to be a big year for that. 

CHIBBARO: Ben, you hit on a great point and I think this is why it's such an exciting area to be in, and especially in this city. We are at the very beginning of regulatory agencies, whether they be federal, state or local developing strategies, because at this point there are many proposals, there's considerations, but we're at the very nascent stages of developing the hard strategies that will become the regulations that are required.

MITCHEL: Absolutely. And I think, you know, we've already seen Miami-Dade County start to take some of these steps, try to put in some of these action items. I think one great example is the County recently released its five point sea level rise strategy. And that strategy is build on fill, build like the Keys, build on high ground, expand greenways and blueways and create green and blue neighborhoods.

And I think each one of those five points, I think, is really interesting and we could spend a whole day talking about any one of those, but from your perspective, as someone who works in - you know -  in development and land use, you know, I’m interested to hear which of those you really think, lends itself to, you know, kind of implementation and impact in Miami-Dade County. 

CHIBBARO: Well, it's interesting. So the build on fill the county has begun to act on, but when we think of the other considerations, and the county has incentives for development in transit areas, I feel like that there's a lot of opportunity. Dynamic developers, innovative designs, innovative engineering solutions to kind of think through these strategies at this point and say, okay, we might have a more creative stormwater solution.

We might have a more creative transit oriented solution. We might have a more creative solution regarding how we're going to incentivize certain behaviors of our residents or our neighbors. So having an ability to review and analyze and think ahead and be proactive and innovative in your solutions is a rare opportunity for developers at this stage.

MITCHEL: Absolutely. And I think John, that really brings us to a nice stopping point, kind of, at this piece of our discussion. And I think what we've, what we've seen and what we've discussed here, is what an interesting and important time it is as it relates to climate change and resilience issues, and how stakeholders, interested parties, businesses, and governments, this is really the time to not only follow developments, but attempt to affect developments, attempt to develop strategies that can help us solve these problems. And our team here at Bilzin Sumberg will continue to monitor all of these issues and provide relevant updates as they pop up.