Bridges and buildings can be designed to have 100-plus year lifespans, meant to last long into the future. Often, the building codes focus on at historical conditions that don’t account for more frequent storms or heavier precipitation that infrastructure will face in the future. What happens when these structures face the flooding and temperatures projected for future climate conditions?
“As those costs increase, I question whether or not design professionals and their insurers will have a target on their back to try and find a pool of money to pay for some of those climate impacts,” said Bill Franczek, an attorney who specializes in construction law.
Franczek and a panel of speakers addressed the question of climate liability — for the private sector, local government, and state government — during the Virginia Coastal Policy Center’s fall webinar series last year. Recently, major project designs like the Hampton Roads Bridge Tunnel expansion have accounted for sea level rise, and the Virginia Department of Transportation has adopted stricter bridge standards than many other states. But as climate impacts become more pronounced, merely meeting standards may not hold up as a defense in court, Franczek said. Largely, climate-related disputes of negligence or foreseeability haven’t been tested in court.
Sea level rise and land subsidence also pose challenges for road construction and maintenance. One study estimated that relative sea level rise and tidal flooding could impact roughly 545 miles of road in Coastal Virginia within the next 20 years, and almost 1,800 miles of road by 2080. Trip Pollard, leader of the Southern Environmental Law Center’s Land and Community Program, said state and local governments have started to recognize climate change’s threat to transportation. Sovereign immunity protects the Commonwealth of Virginia from most liability for roads, Pollard said. Cities and towns are only protected from liability while exercising functions for the public good — their other proprietary functions are not protected.
“This can become a very fine line to try and draw,” Pollard said. “Street planning and design have been determined, for example, to be governmental functions that are immune, whereas routine maintenance of streets has been determined by the Virginia Supreme court to be proprietary, and not immune.”
Some localities, such as the City of Virginia Beach, have addressed the problem by creating more stringent stormwater regulations for their public works standards. Kay Wilson, Deputy City Attorney for Land Use in Virginia Beach, said city residents became more concerned with stormwater management after Hurricane Matthew left some houses in the city with 2.5 feet of flooding. Over the past few years, the city has also created a comprehensive sea level rise plan to manage flooding.
A second webinar featured a legislative panel with updates on resilience-focused legislation and efforts within Governor Northam’s administration, such as Virginia’s entry into the Regional Greenhouse Gas Initiative, which will generate funds for the Virginia Community Flood Preparedness Fund.
While Virginia’s Coastal Resilience Master Plan will identify priorities for coastal resilience, and additional funding is available through FEMA’s Building Resilient Infrastructure and Communities (BRIC) program, communities will still have to make difficult decisions about projects and their maintenance. But the projects that are selected will pay off — each dollar of preventative resilience creates a $4-11 return on investment, according to Pamela Williams, executive director of the BuildStrong Coalition. Williams spoke during a webinar focused on financing resilience projects.
“This makes business sense. This makes community sense,” Williams said. “Resilience is not something only the government can handle… there are people at the table today, including the public financing folks, that have never been robustly engaged in conversation. That is truly going to help us leverage federal investments in creative ways that were never before contemplated.”
During the webinar, the city manager of Alexandria, Virginia, shared the local government challenges of financing resilience projects, and how the city encouraged the private sector to invest in building resilience. Panelists representing the insurance and banking industries, local government, and private sector discussed strategies and tools local governments can use to finance resilience projects.
Recordings of all three webinars in the series can be found here at the Virginia Coastal Policy Center’s website.
Photos by Aileen Devlin | Virginia Sea Grant
Published February 19, 2021.
"This makes business sense. This makes community sense,” Williams said. “Resilience is not something only the government can handle."