Roger Caiazza
Last February Kip Hansen wrote about the New York State Department of Environmental Conservation (Department) proposed Amendments to Part 490, Projected Sea Level Rise in a post here entitled New York State Sea Level Rise: Fantasy as Law. A few days later Anthony Watts responded to a New York Post article by Carl Campanile with the headline: Sea levels around NYC could surge up to 13 inches in 2030s due to climate change: state study. Comments on the regulations related to those arricles are due on April 29. This post describes my comments on the proposed amendment and requests that New Yorkers who read this before April 29 submit comments.
The proposed amendments revise the projections of future sea-level rise required by New York regulations. Kip, Anthony, and I agree that the projections are flawed because the methodology estimates an unrealistically high projected sea-level dependent upon an impossible climate model scenario known as RCP8.5, which has been debunked by actual climate scientists as Anthony reported here and here. This article provides my suggested comments and explains how the Regulatory Impact Statement (RIS) for this proceeding justified using those RCP8.5 projections.
Part 490 Projected Sea-Level Rise Overview
The Regulatory Impact Statement (RIS) for this proceeding describes the regulation’s statutory authority and legislative objectives, the proposed changes, needs and benefits, and costs. It explains:
On September 22, 2014, the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014 (CRRA), was signed into law. CRRA, among other things, established Environmental Conservation Law (ECL) § 3-0319. ECL § 3-0319 requires the Department of Environmental Conservation (Department) to adopt regulations establishing science-based sea level rise projections for New York State and to update them no less than every five years. The Department established a new Part 490 of Title 6 of New York Codes, Rules, and Regulations (6 NYCRR), “Projected Sea-level Rise” (Part 490) in February 2017 and is updating the regulation through the current rulemaking.
The summary of the Part 490 proposed amendments states that:
The goal of the proposed amendments is to provide up-to-date science-based projections of future sea level rise. Part 490 does not create a mandate on local governments. Part 490 does not impose any compliance obligations on any entity.
While technically and legally correct, the excuse not to include costs and the argument that there are no compliance obligations or mandates on local governments has significant ramifications.
The CRRA as amended by the Climate Leadership & Community Protection Act (Climate Act).
clearly creates indirect mandates on local governments because the CRRA covers all permits subject to the Uniform Procedures Act. For example, the New York State Flood Risk Management Guidance for Implementation of the Community Risk and Resiliency Act includes “recommendations” for the use of sea-level rise that are essentially mandates. In another example where the projections are used, the Department webpage Mainstreaming Consideration of Climate Change includes the following:
Consideration of future physical climate risk
As originally enacted, the CRRA required applicants for permits or funding in a number of specified programs to demonstrate that future physical climate risk due to sea-level rise, storm surge and flooding had been considered in project design, and that Department consider incorporating these factors into certain facility-siting regulations. The CLCPA amended the CRRA to include all permits subject to the Uniform Procedures Act. The CLCPA also expanded the scope of the CRRA to require consideration of all climate hazards, not only sea-level rise, storm surge and flooding, in these permit programs.
Part 490 is intended to give permitting authorities information on the full range of potential sea-level rise. The CRRA design considerations that use the sea-level rise projections focus on the highest values. New York State Flood Risk Management Guidance for Implementation of the Community Risk and Resiliency Act states that “Applicants and programs are also encouraged to consider the following during project siting, design and review” states:
Applicants for projects involving new or replacement critical infrastructure should consider the full range of projected flooding, including the highest adopted projections of sea-level rise, during the expected service life of the project. Where adherence to the highest guideline is not feasible, due to practicality, costs, risk tolerance, and/or environmental effects, applicants should carefully describe and justify designs not adhering to the most restrictive guideline.
Comments
I am going to submit detailed comments that justify the following brief comments that I ask that New Yorkers submit. I will provide some of the justifications for these comments below.
The Regulatory Impact Statement inappropriately uses a “high-end storyline” approach for regulatory guidance. This approach led to the inclusion of projected sea-level rise that is associated with a high emissions scenario that is almost impossible. Furthermore, the Part 490 Proposed Amendments are intended to support Community Risk and Resiliency Act (CRRA) infrastructure applications that are supposed to consider sea-level rise. This means that the likelihood of occurrence of the low-confidence, high-impact projections must be considered in the context of the life expectancy of CRRA infrastructure applications, and the Regulatory Impact Statement does not do that. The Regulatory Impact Statement also improperly excludes the cost comparison between the proposed alternative and alternatives that incorporate observed sea-level rise which is necessary to determine the impact of the “high-end storyline” approach.
I recommend that the scenarios that use the implausible high emissions scenarios be excluded from the sea-level rise projection recommendations. The “high-end storyline” approach is inappropriate for the intended purpose of Part 490 because the lifetime of CRRA infrastructure complying with the proposed sea-level recommendations is shorter than when the high impact sea-level rise could occur. Using inappropriate projections of sea-level rise will needlessly increase costs. The pledge and review approach should be used to address concerns about 6modeling uncertainties.
Justification
I recommended that ”the scenarios that use the implausible high emissions scenarios be excluded from the sea-level rise projection recommendations.” Both Kip and Anthony documented reasons why the RCP/SSP5-8.5 emissions scenarios should not be used. My detailed comments contain more documentation which I had submitted in a pre-proposal draft of the proposed amendments last May. In response to the issues I raised at that time, the RIS admits that those emission scenarios are implausible:
The Department acknowledges that current GHG emissions policies would result in actual emissions lower than projected by SSP5-8.5. Thus, the inclusion of higher projections of sea level rise, especially those based on SSP5-8.5, could lead to consideration of conditions that are unlikely to occur, at least in the more immediate future.
So how did the Department justify the continued use of SSP5-8.5? The RIS goes to considerable lengths with statements like the following: “Unfortunately, current literature does not provide a basis for assessment of the emissions levels at which ice shelf and marine ice cliff instability, important factors in sea level rise in high emissions scenarios, such as SSP5-8.5, become significant.” All this can be traced back to the ultimate source of projection numbers – the New York Research & Development Authority (NYSEDA) New York State Climate Impacts Assessment. The description of the NYSDERDA Assessment Steering Committee states “The assessment has been guided by a Steering Committee of climate scientists, assessment experts, and representatives from nonprofit organizations and state and municipal government agencies.” I am very critical of the review process because I know that there is immense pressure to adhere to the narrative within NYSERDA and I am sure no one skeptical of the extreme impact narrative was allowed anywhere near the Steering Committee. As a result, the Impact Assessment and the sea-level rise projections support the “existential threat” narrative rather try to include an unbiased estimate of future sea-level rise.
I made the comment that the approach used was inappropriate:
The Regulatory Impact Statement inappropriately uses a “high-end storyline” approach for regulatory guidance. This approach led to the inclusion of projected sea-level rise that is associated with a high emissions scenario that is almost impossible.
In my detailed comments I explained the likelihood of occurrence projections are necessary because they will be used for CRRA infrastructure project flood risk management where timing is important. The RIS argues that even if the high emissions scenarios are wrong that there is still a risk: “Unfortunately, current literature does not provide a basis for assessment of the emissions levels at which ice shelf and marine ice cliff instability, important factors in sea level rise in high emissions scenarios, such as SSP5-8.5, become significant.” This statement does not acknowledge the point that the analyses that claim ice shelf and marine ice cliff instability rely on projections that use the SSP5-8.5 scenario. Projections do not project the high risks unless the implausible scenarios are used, especially during the expected lifetime of CRRA infrastructure. My comments addressed this:
Furthermore, the Part 490 Proposed Amendments are intended to support Community Risk and Resiliency Act (CRRA) infrastructure applications that are supposed to consider sea-level rise. This means that the likelihood of occurrence of the low-confidence, high-impact projections must be considered in the context of the life expectancy of CRRA infrastructure applications, and the Regulatory Impact Statement does not do that.
I recommended not using the projected sea-level rise projections based on SSP5-8.5 scenarios because the “high-end storyline” approach incorrectly ignores project lifetimes.
I recommend that the scenarios that use the implausible high emissions scenarios be excluded from the sea-level rise projection recommendations. The “high-end storyline” approach is inappropriate for the intended purpose of Part 490 because the lifetime of CRRA infrastructure complying with the proposed sea-level recommendations is shorter than when the high impact sea-level rise could occur. Using inappropriate projections of sea-level rise will needlessly increase costs.
My biggest concern is the effect of these sea-level rise projections on costs. The RIS description of costs states
Part 490 will not impose any costs on any entity because the regulation consists only of sea level rise projections and does not impose any standards or compliance obligations. In other words, while Part 490 will provide a common source of sea level rise projections for consideration within programs specified by CRRA, as well as for consideration by planners and decisionmakers in other contexts, it will not impose any requirements on any entity. Therefore, no costs are associated with Part 490. Likewise, the regulation will also not impose any additional costs on the Department or local government entities.
As noted previously, because the sea-level rise projections are used in guidance for a wide range of permitting applications this argument might be technically true, but the reality is that the choice of the “high-end storyline” projections relative to other alternatives is a pertinent cost issue. I commented on this:
The Regulatory Impact Statement also improperly excludes the cost comparison between the proposed alternative and alternatives that incorporate observed sea-level rise which is necessary to determine the impact of the “high-end storyline” approach.
The RIS justifies their “high-end storyline” approach because of uncertainties. Kip, Anthony, and I all agree that the least uncertain projection of sea-level rise, at least in the life expectancies of CRRA infrastructure, would be to extrapolate the observed trends of sea-level rise. I could accept the use of projections that use SSP2-4.5 emissions because these sea level rise projections are associated with the most likely conservative estimates of potential emissions and the numbers are more consistent with observed sea-level rise. I included this recommendation in my detailed comments.
In my comments I argued that an approach that could address uncertainty was most appropriate because we simply don’t know what is going to happen: “The pledge and review approach should be used to address concerns about 6modeling uncertainties.” . The comments recommend that Part 490 implementation adapt the “pledge and review” approach suggested by Otto et al that were described in detail in comments submitted by the Environmental Energy Alliance of New York in 2016 for the previous Part 490 projections The pledge and review approach avoids having to resolve the scientific projection in order to establish policy approaches to accommodate sea level rise. Instead, the “pledge and review” approach establishes policy requirements subject to observable criteria. In short, an index is chosen as the review standard. In this case a good parameter to use would be the observed sea-level rise itself or, probably better, sea-level rise acceleration. Recommended policy response levels or pledges are defined. I would recommend using sea-level rise projections based on SSP2-4.5 emissions as a suitable conservative choice. In five years when the next Part 490 amendments are due the observed sea-level rise accelerations would be compared to those projections. If there are indications that the sea-level rise is accelerating outside the range covered by the pledge, then the pledge is adjusted. If not they remain in place. The comments recommended:
Discussion
The ultimate issue is that there is a disconnect between the proposed sea-level projections and the intended use. The likelihood of occurrence is needed for flood risk management and the proposed amendment does not address this. The “high-end storyline” approach just gives the highest values without consideration of impacts on the way they are used. The result is that development near the tidal shoreline is planning for extremely high projected sea-level rise. A New York City project to increase a park to handle 8 to 10 feet of sea-level rise is include in “a $1.45 billion flood protection project that backers say befits the nation’s largest city, a massive project that will include the construction of a 2.4-mile system of walls and gates along the East River”. That is only a fraction of the harbor front in New York City, so it makes sense to use more reasonable estimates of sea-level rise given the need to protect the entire harbor of New York. Sadly, it is easier for the Department to just recommend the biggest number to “be safe”.
The Department rulemaking process requires staff to read the public comments and prepare a response to comments received document. In 2017 the response to comment document responded to the suggestion for the recommended pledge and review approach:
While the Department has not yet determined the precise review process it will use, the Department has concerns with the pledge and review approach suggested. The first is its reliance on a limited number of tide gauges. As can be seen from the table provided in the comments, which includes the Battery and Montauk Point, local factors can affect sea-level change at individual stations so that significantly different, even opposite, trends are indicated, even from proximate stations. Secondly, the pledge and review approach would yield planning values based only on historical trends in rise or rates of rise, whereas CRRA requires consideration of future climate risk. As described in the RIS, the rate of sea-level rise is not projected to be constant based on historical values, but is instead projected to accelerate with increased warming. Projections based solely on the pledge and review approach could be easily skewed by short-term, localized phenomena, and the approach would fail to account for acceleration of sea-level rise that would occur with projected warming.
In my detailed comments I addressed this response. The uncertainty of concern is rapid ice melt which of course is additive to the total sea-level rise. If this happens, then all tidal regions in New York will see this increase in the trend so the first objection is pointless. The second objection ignores the potential to use a pledge based on a more realistic projection of sea-level that considers “future climate risk”. The argument that sea-level rise will accelerate is not valid because there has been no acceleration since the projections were made. Kip Hansen explains sea-level rise is slow and long-term – it is not nothing, but it doesn’t suddenly jump from steady state (as shown in tide gauges all over the world (when correct by CGPS) to sky-rocketing.
How To Provide Written Comments
I encourage New York readers to submit written comments by the 5:00 PM April 29, 2024 deadline. I have prepared a detailed explanation of the process at this link. The link also includes the comment described above.
The link provides the recommended comment.
- Enter the following address in your address line: climate.regs@dec.ny.gov
- Put Comments on Part 490 in the Subject line
- Copy the comment text in the link into the body of your email.
- Submit it
Conclusion
I have submitted comments for countless proceedings over the last 40 years. Sadly, over the years all decisions by New York State agencies are more and more politically driven to the point now that all rulemaking policy decisions are ultimately decided by the Administration regardless of the science. In this instance the science has been perverted to follow the Administration’s narrative. I am not optimistic that there will be any substantive changes to the Proposed Amendments. The only solace is that comments in the record will show that the State was warned that their policies were ill-advised when the proposed sea-level recommendations fall far below the observed rise.
