Can Local Officials Who Ignore New Weather Extremes Be Sued? A Work in Progress

David Dubin, another Detroit lawyer, says there's merit to the idea that some cities aren't preparing for heavier flooding.  Old storm pipes are often in disrepair, and rainfalls are now more bruising, he said.  But he's only seen one person make warming-related accusations in court -- Bazzo, a former colleague with whom he's had disagreements.  Dubin thinks climate arguments will increase over time.  Strong storms act like a "stress test for the heart," he said, but in this case, the arteries are subterranean tunnels.

But for now, that argument isn't ripe, Dubin said.  Legally, it's more sure-footed to argue that cities are negligent of maintaining pipes, canals and bridges, because there's plenty of that to go around.  They can be clogged, crushed or badly engineered, he said.  They can fail without man-made rainfall increases.  That type of negligence is sometimes accepted by the courts, whereas the idea that cities have failed to prevent floods exacerbated by rising temperatures hasn't been.  Not yet anyway.

"I think it will [happen]," Dubin said.  "Everyone's on notice that the climate is changing, that you're going to experience these problems more often, and that you can't just keep hiding behind the act-of-God defense."

He was referring to the idea, sometimes offered by defense lawyers, that communities can't plan for every disaster -- because an act of God, legally, can reasonably overwhelm public defenses.  But one way that argument could be diluted, Dubin suggested, by the idea that people can also affect the weather.

And it makes sense that it might happen in his neck of the woods.

The Upper Midwest has seen one of the biggest jumps in rainfall nationally, amounting to a 37 percent volume increase in the heaviest downpours since the 1960s.  Because the extra rain is present in 1 percent storms, which amounts to roughly the 60 rainiest days in the past 50 years, the added water can tax storm systems built before historical data revealed intensifying precipitation trends, according to scientists and engineers.

A 37 percent increase can add perhaps an inch of rain to an average 1 percent storm, raising the volume of rainfall to about 4 inches, said Kenneth Kunkel, an expert on heavy precipitation at NOAA's National Climatic Data Center.

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