New York Continues to Claim It Follows Science, But Ignores It When Inconvenient, Accelerating Its Rush to the Bottom

Guest Post by Roger Caiazza of Pragmatic Environmentalist of New York.

I submitted comments last April on the Department of Environmental Conservation (DEC) proposed Amendment to Part 490 Projected Sea-Level Rise (Amendment). DEC stated that: “The goal of the proposed amendments is to provide up-to-date science-based projections of future sea level rise.” This article responds to the replies to the comments I submitted.

DEC’s Climate Change Regulatory Revisions webpage describes the Amendment to the regulation:

On September 22, 2014, the Community Risk and Resiliency Act was signed into law — Chapter 355 of the Laws of 2014 (CRRA). CRRA is intended to ensure that decisions regarding certain State permits and expenditures consider climate risk, including sea-level rise. Among other things, CRRA requires the Department of Environmental Conservation (Department) to adopt regulations establishing science-based State sea-level rise projections.

Therefore, the Department proposed a new 6 NYCRR Part 490, Projected Sea-Level Rise (Part 490). Part 490 establishes projections of sea-level rise in three specified geographic regions over various time intervals, but does not impose any requirements on any entity. An amended Part 490 was adopted in September 2024 with no revisions to the draft released for public comment in January 2024.

While DEC loses no opportunity to say that this regulation imposes no requirements on any entities, I believe there are implicit requirements.

Last April I was prompted to respond to the proposed Amendment by some articles that were published early in 2024. Kip Hansen wrote a post 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. I prepared comments which I summarized in a post. In September 2024 DEC adopted the Amendment. Surprising no one, their Assessment of Public Comments blew off all the concerns expressed.

Kip Hansen summarized New York sea level rise history and the DEC projections in detail in his post. What you need to know here is that New York City’s sea level has been increasing 3 mm per year over 167 years. Enough of that observed increase is caused by local subsidence so that the remainder is “very close to the standardly cited Global Sea Level Rise figure for the 20th Century of 1.7 or 1.8 mm/yr. (opinions vary – see NOAA here.)”

Kip explains that the projected increases included in the Amendment” have not been seen in the decade since the 2014 update report and, based on the historical record, are extremely unlikely to be seen in the near future.” He points out that “all the projections, in the Amendment, in the NYSERDA 2014 report and in the NYS Climate Assessment require doubling and tripling of long-term sea-level rise rates in New York City.”

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. Depending upon which version of the Intergovernmental Panel on Climate Change report being used the modeling scenarios are known either as a Representative Concentration Pathway (RCP) or Shared Socio-economic Pathways (SSP). The RCP-8.5 scenario has been debunked by many as Anthony reported here and here. My comments focused on the misuse of RCP-8.5 using some of those references and adding others.

The Amendment revises the projections of future sea-level rise required by New York regulations.

I raised the RCP-8.5 concerns in the pre-proposal draft of the amendment. The Regulatory Impact Statement (RIS) uses the label SSP5-8.5 for this scenario and 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 DEC justify the continued use of SSP5-8.5? The RIS goes to considerable lengths to justify its use 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.”

DEC is required to respond to submitted comments. The Assessment of Public Comments document addressed my arguments in their response to Comment 6. They summarized my concerns saying that “SSP5-8.5 is not plausible, and model outputs based on this SSP, including the rapid ice melt scenario, should not be included in the projections.” The reply stated:

Response to Comment 6: DEC has described its rationale for including SSP5-8.5 model outputs in its projections, including the rapid ice melt scenario, in the RIS. To summarize here, the emission-reduction gap noted above, uncertainties in the causal chain to sea level heights, including ice cliff and ice shelf stability, and reports of accelerating Antarctic and Greenland ice loss reduce confidence that SLR will be limited to the levels projected by SSP2-4.5 models. The CIA methodology report (p. 21) provides additional rationale for including projections based on SSP5-8.5:

• Continuity with previous New York State projections, which were based on representative concentration pathways with the same end-of-century radiative forcing.

• Stakeholder interest in these projections, based on CIA Needs Assessment.

• Value of identifying a broad range of plausible outcomes.

• Current climate impact models’ underestimation of plausible outcomes when driven by only moderate GHG forcing.

DEC maintains that inclusion of high, albeit unlikely, projections to enable consideration of the consequences of low-probability but high-consequence events to be the more prudent alternative to limiting projections to those based on SSP2-4.5.

The crux of my disagreement is the value of incorporating what is essentially an impossible scenario. All the reasons cited attempt to justify what is essentially an executive decision to perpetuate the narrative that there is an existential threat of climate change exemplified, in this case, by extraordinary sea-level rise projections.

It is telling that the response claims the extreme projections are included because of “Stakeholder interest in these projections, based on CIA Needs Assessment.” New York State agencies love to claim that they have a robust stakeholder process. However, the stakeholder process operates with a loaded deck. The New York Research & Development Authority (NYSEDA) CIA Needs Assessment Steering Committee is a relevant example.

The report 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. In addition, technical analyses performed for NYSERDA will not be funded in the future if the answers do not support the narrative.

Another reason given for using the impossible scenario is the “value of identifying broad outcomes”. In this instance I think the value is primarily for the “scare the bejesus out of the populace” narrative needed to perpetuate the story that New York politicians are here to save the planet even in the face of increasingly obvious enormous costs, threats to reliability, and inevitable reduction in personal choice. This will only stop when there is a change in the political balance of New York.

I also submitted comments on the use of the projections.

The Assessment of Public Comments document summarized my concern about how the projections will be used in Comment 7: “Although Part 490 may not directly create a mandate on local governments, many permits must consider the SLR climate hazard, which is a clear mandate affecting all governmental agencies.” The response stated:

Commenter is correct that the Community Risk and Resiliency Act (CRRA) requires that applicants for all permits regulated pursuant to the Uniform Procedures Act (UPA) demonstrate consideration of climate change, including SLR. However, local governments are not required to incorporate the State’s climate change projections, including projected SLR, into local decision making. Local governments may be required to incorporate projected SLR into siting and design for projects for which a UPA permit is required. However, the manner in which projected SLR must be incorporated is described in program-specific regulations, policies, guidance and permit conditions.

This response basically abdicated their responsibilities with a “well it really doesn’t matter” claim. I don’t think that local governments have the time or the expertise to address sea level rise with their own approach. Part 496 will be approach used to define sea level rise in most cases.

DEC responded to my comment about where the extremely high projection will be used in Comment 9: “The proposed amendments would require that all projects along the tidal shoreline must protect against 114 inches of SLR.”

Comment is not accurate. SLR of 114 inches is the proposed end-of-century projection under the rapid ice melt scenario. However, as stated in the RIS, DEC does not intend to require consideration of the rapid ice melt scenario in its permitting. The State Flood Risk Management Guidance (SFRMG) recommends consideration of the medium SLR projection (36 inches by 2100) over the expected service life of the project for non-critical projects and recommends use of the high projection (65 inches by 2100) over the expected service life of the project only for critical projects. Lower projections would be applicable according to the expected service life of the project.

The DEC responses focused on the rapid ice melt scenario, but the intent of my comments was that all the scenario results were way too high because they use RCP-8.5. At the observed rate over the last 167 the likely total sea-level rise by 2100 is only 9 inches which is four times higher than the medium SLR projections and over seven times higher than the high SLR projections they recommend. This must have an impact on costs. DEC responded to my recommendation that the RIS should include an accounting of costs associated with the different SLR projections in Comment 10:

No reasonable accounting of costs associated with these projections can be provided due to uncertainty regarding the number and types of projects that might be affected. Although municipalities could incorporate the proposed projections into local planning and zoning, CRRA does not require them to do so. Thus, most residential projects would not be directly affected by these projections. Rather, these projections are most applicable to projects under the Department’s regulatory purview, which are more likely to be unique in their siting and design considerations and warrant consideration of costs and benefits on a case-by-case basis.

Further, as discussed in the revised RIS, the differences between the scenario recommended by the commenter as the basis of projections and the approach selected by the Department are relatively small and represent a reasonable additional element of safety to account for uncertainty and the gap between GHG emission reduction commitments and implementation for the projections that are most likely to be used in regulatory contexts.

I have two problems with this response. Refusing to include costs because it would be hard simply avoids responsibility. Secondly, I do not think that projections that are four to seven times higher than the observed trend are “relatively small”. I think this response represents a different interpretation of the intent of my comments that the modeling approach used by DEC over-estimates the possible sea-level rise compared to the observed trend. The changes in the observed trend necessary for the models to be reasonably accurate are so great that the trend would have to exhibit marked acceleration today. It is not happening.

My cost concerns were summarized in Comment 11: “The RIS is flawed because it does not weigh data against benefits and consequences for the intended application, i.e., developments with near-term life expectancies. All the other steps for appropriately addressing risk are hindered by not considering the applicability of the time frame. Ultimately the precautionary principle is applied without any other considerations.” DEC responded:

The comment is incorrect in that it implies that projections of SLR far into the future, beyond the life expectancy of the project, must be incorporated into siting and design of the project. In fact, every one of the flood risk management guidelines for tidal areas included in the SFRMG includes consideration of the “sea-level rise projection over the expected service life of the structure.”

This might be another instance where DEC and I are talking past each other. I tried to argue that the probability of problems with sea-level rise that their projections imply is very low compared to a reasonable expectation of the life expectancy of the project. The observed sea-level rise expectation in 2100 will likely not occur until 2300 which is far beyond any reasonable expectation for life expectancy planning.

Conclusion

This process is an indictment of New York State’s regulatory mandates for stakeholder participation. State agencies treat the stakeholder process as an obligation and not as an opportunity to improve their programs.

In this instance the lack of pre-proposal comments from the affected jurisdictions should have prompted more outreach. The response to comments suggests that the extreme projections that prompted the New York Post article mentioned in the introduction will not necessarily affect SFRMG planning as much as I fear.

The question is whether the affected jurisdictions know that or not. There are some instances where my comments and their responses could have led to further discussions if there was genuine interest in improving either the regulation or their description of why they are doing what they propose.

Surprising no one, their Assessment of Public Comments blew off our concerns. There is no reasonable defense for using RCP-8.5. As long as New York State continues to claim they follow the science but ignore it when it is inconvenient, the more likely the rush to the bottom will become a death spiral.

#Caiazza #Climate #Temperature #GlobalWarming #Measurement #SeaLevel

Roger Caiazza blogs on New York energy and environmental issues at Pragmatic Environmentalist of New York.  This post represents his opinion alone and not the opinion of his previous employers or any other company with which he has been associated. Roger has followed the Climate Leadership & Community Protection Act (Climate Act) since it was first proposed, submitted comments on the Climate Act implementation plan, and has written over 480 articles about New York’s net-zero transition.