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Will Sandy’s NYC Devastation|Blow Changes Through Law?

MANHATTAN (CN) - Hurricane Sandy's devastation of New York City spurred the head of Columbia University's Center for Climate Change Law to reflect on the legal liabilities of cities' and builders' actions, or inaction, to climate change.

Neither presidential candidate mentioned climate change in three rounds of debates.

But Michael Gerard, director of Columbia's Center for Climate Change Law, said Monday that the immediate future of carbon emission regulation could hinge on the results of today's vote.

Gerard cited the 2007 U.S. Supreme Court ruling in Massachusetts v. EPA.

By 5-4 vote, the Supreme Court ruled that the Clean Air Act requires the U.S. Environmental Protection Agency to regulate as pollutants carbon dioxide and other gases that contribute to global warming.

The ruling tasked the agency with making a scientific decision on whether such emissions are dangerous to health and welfare.

In 2009, the EPA's peer-reviewed scientific analysis of six greenhouse gases demonstrated their potential impacts, including increased flooding, more intense heat waves and wildfires, rising sea levels, and harm to wildlife, ecosystems and agriculture.

Early in his tenure, President Obama endorsed the EPA using its new court-mandated power. Fossil fuel companies filed scores of lawsuits to stop it from doing so.

The District of Columbia Circuit Court of Appeals dismissed all of Big Oil's challenges in June.

"The biggest question is going to be, who wins the election tomorrow," Gerard said on Monday. "If Romney wins, he made it clear he's going to stop those regulations."

Gerard said the issue got short shrift on the campaign trail.

"Among environmental lawyers, it's widely known," he said. "It might not be widely known to the public at large."

The legislative branch probably will have to decide whether oil companies should pay for coastal devastation resulting from climate change, Gerard said.

In October, the 9th Circuit sidelined Kivalina v. Exxon, filed by native Alaskans who say they are losing their arctic village to rising global temperatures.

Writing for the majority, Judge Sidney Thomas said, "[T]he solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law."

Comer v. Murphy Oil, which sought to hold oil and coal companies liable for Hurricane Katrina, failed for a similar reason, Gerard said.

"The fundamental problem with all these cases is the separation of powers," Gerard said.

Coastal cities considering erection of surge barriers, such as the famous seawalls in the Netherlands, should keep an eye on the Supreme Court ruling in Arkansas Game and Fish Commission v. U.S. Army Corp of Engineers.

Justices in October heard arguments about whether the Corps of Engineers should pay for flooding in Missouri because of its release of water from a Missouri dam.

Gerard said the ruling in this case could be relevant to the debate over whether to protect some coastal cities with barriers, which divert water that could put others at risk.

"We'll have to see what the court says," Gerard said. "There are obviously some statutory limitations on flood-control structures. There are federal statutes that limit that liability. It's possible that the city, if it decided to go forward on this type of structure, might seek congressional authorization that could include a liability protection."

As New York City recovers from the devastation wrought by Sandy, Gerard said, "A major issue that will arise is whether the designers and builders of buildings and infrastructure took appropriate precautions for a storm of this magnitude. There have been several predictions over the last couple of years that a storm like this could happen. There may be litigation about whether it was reasonably foreseeable."

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