by Mike Kelly & Jameson Tweedie
Last month, Delaware Governor Jack Markell issued Executive Order No. 41, “Preparing Delaware for Emerging Climate Impacts and Seizing Economic Opportunities from Reducing Emissions.” In many climate change discussions there exists an implied or overt assumption that society must choose between the economy and the climate. Consistent with a theme that has resurfaced throughout his tenure as Governor, in Executive Order No. 41 Governor Markell explicitly rejects that choice: “initiatives to responsibly reduce greenhouse gas emissions and prepare Delaware for climate impacts present significant economic development and employment opportunities in infrastructure construction, energy efficiency, clean energy, and advanced transportation.”
Executive Order No. 41 consists of three main components. First, it establishes a Governor’s Committee on Climate and Resiliency (the “Committee”). The composition of the Committee itself is noteworthy as it is clear this effort is not “mere puffery,” rather the Committee will include many of the key cabinet heads, including the Secretaries of the Departments of Natural Resources and Environmental Control (“DNREC”), Agriculture, Transportation, Health and Human Services, Safety and Homeland Security, and State, as well as the Directors of the Delaware Economic Development Office, the Office of Management and Budget, the Delaware State Housing Authority, and the Office of State Planning Coordination.
Second, the Committee, chaired by the Secretary of DNREC, shall develop a “an implementation plan to maintain and build upon Delaware’s leadership in responsibly reducing greenhouse gas emissions,” as well as recommendations for actions by agencies and local governments. The plan and recommendations must be delivered to the Governor by the end of 2014, with the implementation plan updated annually thereafter. Noteworthy are the requirements which Governor Markell mandates for the plan, overtly rejecting the notion that advancing the economy and planning for, and reducing, climate change must be at odds. The plan “shall ensure that efforts have a positive effect on the State’s economy, including advancing the strategy of securing cleaner, cheaper, and more reliable energy, improving public health outcomes, increasing employment in Delaware, strengthening Delaware’s manufacturing capabilities, and enhancing Delaware’s overall competitiveness” (emphasis added). This mandate that the climate change plan achieve positive economic results is framed by the plain acknowledgment of the significant risks facing Delaware from climate change and sea level rise. These risks include that:
• Delaware has the “lowest average land elevation in the United States and significant population living along 381 miles of shoreline,” putting Delaware at risk for coastal erosion, storm surge, flooding, saltwater intrusion, and tidal wetland losses.
• Delaware’s critical infrastructure is at risk from climate change.
• Delaware’s groundwater aquifers are at risk from saltwater intrusion.
• Delaware’s $8 billion agriculture industry “could be significantly impacted by increasingly variable temperatures, precipitation, extreme weather events, and droughts.”
• Delaware’s $6 billion tourism industry is vulnerable to climate change and sea level rise.
The Governor makes clear his belief that mitigating climate change and pursuing economic growth are not mutually exclusive. Indeed, he plainly considers the joint goals of positive economic and climate outcomes as a logical next step from the successes already achieved in Delaware, including Delaware’s role within the Regional Greenhouse Gas Initiative, Delaware’s reduction of greenhouse gas emissions “by more than any state in the nation (29.7% from 2000 to 2010),” and Executive Order No. 18, which sought to reduce the climate change impacts of State Government, and which the Governor asserts not only significantly reduced the climate-related impacts of State Government, but at the same time “result[ed] in millions of dollars of savings.”
Third, and likely with the most immediate on-the-ground consequences (rather than future planning), Executive Order No. 41 requires that “all state agencies shall adhere” (emphasis added) to certain flood hazard mitigation and sea level rise adaptation requirements. These include:
• Requiring all state agencies to “incorporate measures for adapting to increased flood heights and sea level rise in the siting and design of projects for construction of new structures and reconstruction of substantially damaged structures and infrastructure” to avoid and minimize flood risks, and, wherever “practical and effective” shall use natural systems or green infrastructure to “improve resiliency to flood heights, erosion, and sea level rise.”
• Requiring structures within Federal Emergency Management Agency (“FEMA”) special flood hazard areas to be “designed and constructed with habitable space at least 18 inches above current base flood elevation” and, in addition, requiring structures within areas designated by DNREC to be vulnerable to sea level rise inundation to be “designed and constructed to account for sea level changes anticipated during the lifespan of the structure” (emphasis added).
• Requiring all state agencies to “consider and incorporate the sea level rise scenarios set forth by the DNREC Sea Level Rise Technical Committee into appropriate long-range plans.”
Only time will tell whether Governor Markell can achieve his dual goals of climate change action and economic growth, but Executive Order No. 41 demonstrates that he is well aware of the challenges and confident in his administration’s ability to achieve both goals. His experience in the private sector and his economic track record since taking office in 2009, in the midst of the Great Recession, indicate that his climate change policies, and his optimism that they can be positive forces for economic growth, are based on pragmatism, science and economics, not ideology.
J. Wylie Donald, a partner at McCarter & English, LLP, counsels and litigates for clients on insurance coverage, environmental and products liability matters. Mr. Donald co-chairs the firm's Climate Change and Renewable Energy Practice. He draws on his substantial environmental experience, his prior non-legal technical work, and his deep involvement in risk management to assist clients in understanding and controlling the coming regulatory and non-regulatory impacts of climate change. He has tried cases and argued appeals in the state courts in New Jersey and Maryland, conducted private arbitrations and mediations, and argued motions in federal courts across the nation.
Read more at Climate Lawyers Blog by McCarter & English, LLP.
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