"Climate change will increase risks significantly in many areas of society, and also will render far less measurable many risks that were previously calculable. If our society is to survive climate change without significant human costs, we must develop robust institutions and practices to manage these risks. The insurance industry is our society's primary financial risk manager, and needs to play a leading role in developing these institutions and practices. But climate change poses an unprecedented challenge to the insurance industry, because factors such as increasing uncertainty and the potential for highly correlated losses will make it difficult to insure against climate change-related risks and will strain capital markets' ability to compensate those who are affected. If the industry rises to the challenge, it stands to profit while facilitating our most successful responses to climate change-related threats around the world. If not, insurers will suffer along with everyone else. A report issued recently by a major financial firm identified climate change as the number one 'strategic threat' facing the insurance industry, noting that it is a 'long-term issue with broad-reaching implications that will significantly affect the industry.' To date, however, there has been relatively little effort to examine what supply- and demand-side barriers may be impeding development of insurance products that address climate change risk effectively. In this context, this Article examines the incentives that insurance products provide to influence the climate change-mitigating and adaptive capacity-building behavior of policyholders and other actors. It also looks at the reasons that insurers might or might not choose to provide those products and the reasons individuals and businesses may or may not choose to purchase those products. Finally, it examines the extent to which the insurance industry's products are likely to play a significant and effective role in affecting private actors' responses to climate change. The Article concludes that although it is not yet clear whether and how the insurance industry will be able to address climate change in a way that systematically creates solutions, the industry's future - and perhaps the rest of ours as well - may rest on the success or failure of its adaptation to a world with a changing climate." —Abstract.
"Hurricane Katrina's overriding lesson for environmental law is no less than our environmental lawmaking institutions require fundamental reformation. Otherwise, the nation's tragic failure not only to enact laws that anticipate the obvious risks presented to the Gulf Region by hurricanes, but perversely to increase those risks by destroying the ecosystem's natural protections, will inevitably be repeated with even more devastating results." —Abstract.
"Section 502 of the Labor-Management Relations Act (LMRA) allows employees to stop working if they face 'abnormally dangerous conditions,' and a rule under the Occupational Safety and Health (OSH) Act creates an employee right to refuse work because of 'apprehension of death or injury.' Using a hypothetical scenario, I show that neither law would assist emergency workers who lack protective gear while responding to a terror attack.
"I propose an NLRB rule to strengthen Section 502, a 1947 law that is dormant but appropriate for these abnormal workplace dangers. Although part of my proposal draws on the experiences of 9/11, it is mainly founded on fundamental changes in job duties and government employment regulations that recognize a permanent threat to domestic security. The growing list of affected occupations includes dockworkers and doctors, subway and airport workers, power plant and postal employees, and more. However, my proposal excludes police, firefighters, and most paramedics. They perform immediate lifesaving services, and in any event, are excluded from the NLRB's jurisdiction because they are public employees.
"My proposal draws from the fruitless experience of appellate court decisions on Section 502. This caselaw is conflicted because courts disagree as to whether an employee must present proof in fact of an extreme risk, or be motivated by good faith belief. My proposal is also based on the intent of the drafters of Section 502. The two sponsors of this law were Republican senators who strongly opposed union interests. However, when proposing this law in the midst of enacting strike controls, they said 'it would be very unfair and very unjust to employees in any industry to penalize them, if, because of abnormal or unusually dangerous conditions, they should refrain from working.'
"Using evidence from recent GAO reports and other studies, I show that new types of emergency workers are poorly trained and equipped. For the few who train for a cataclysmic attack, their simulations are unrealistic. These employees— who, in their routine jobs do little or no life-threatening work— are not trained for their own fear and panic. Thus, there is too little attention to the possibility that these essential workers will refuse orders when their lives are endangered.
"By breathing life into Section 502, the NLRB would join the large circle of federal and state agencies that are currently immersed in this emergency planning. The purpose of my Article is not to spare a few careers that might otherwise be lost in a poor response to an attack. If these newly designated or de facto emergency workers are not extended a work refusal right, their employers will continue to be lax in improving protective equipment, communication systems, bio-terror inoculations, and work procedures. In the final analysis, proper training and protection of these new emergency workers is essential to deter, prevent, respond to, and mitigate an attack." —Abstract.
"Emitters of greenhouse gases externalize the true costs of their contribution to climate change. Efforts to recover these costs, which manifest both through the costs of impacts and the costs of efforts to prevent impacts, can take the form of insurance claims as well as legal remedies. The most widely discussed insurance-related consequences of climate change are the impacts of property damage from extreme weather events. However, there is increasing awareness of the relatively subtle but equally important dimension of liability. Liability insurance risks - risks to insurers from claims of third-parties who allege injury or property damage that may be the fault of the insured - are rising as scientific uncertainty surrounding climate change declines. This Article explores three major dimensions of the issue: (1) sources of climate-change-related legal liability to third parties and their nexus with insurance and law, (2) new liabilities associated with potential technological responses to climate-change, and (3) potential roles for insurers, reinsurers, and other industry actors in proactively managing climate change-related liability insurance risks for themselves and their customers. Because the insurance sector is the world's largest industry, the response of insurers to the broader climate-change challenge will no doubt be key to the ultimate success of society's overall response."—Abstract.
+Tomain, Joseph P., Katrina's Energy Agenda(provided by: SSRN) (U of Cincinnati Public Law Research Paper No. 06-18) (Natural Resources & Environment, Vol. 20, No. 4, Spring 2006)
"Hurricane Katrina is a warning for the United States not only about disaster response but also about planning for a healthy and productive energy economy. The Energy Policy Act of 2005, signed into law only months before Katrina, continues a policy that has dominated our energy thinking for over a century. Neither the United States nor the world can continue on a path of increased fossil fuel burning without acknowledging the long-term, global, difficult to manage, and complex to understand consequences of climate change. This article advocates a significant energy transition away from that path to become less dependent on fossil fuels and more dependent on cleaner renewable and alternative fuels. An alternative energy policy has been developing over the last three decades that is based on the assumption that energy production has a direct impact on the quality of the environment, on national security, and on global relations, as well as on a healthy pro-growth economy. Katrina presents an opportunity to reevaluate the traditional policy and to engage in a transition to this new "smart" energy policy for a strong economic future." —Abstract.
