William Funk

Climate Change and the Puget Sound: Building the Legal Framework for Adaptation

The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued climate change impacts regardless of any present or future mitigation efforts due to the long-lived nature of greenhouse gases emitted over the last century. The need to adapt to this new future is crucial. Adaptation may take a variety of forms, from implementing certain natural resources management strategies to applying principles of water law to mimic the natural water cycle. The goal of adaptation efforts is to lessen the magnitude of these impacts on humans and the natural environment through proactive and planned actions. The longer we wait to adopt a framework and laws for adapting to climate change, the more costly and painful the process will become.This publication identifies both foundational principles and specific strategies for climate change adaptation across the Puget Sound Basin. The projected impacts themselves of climate change in the region were well studied in a landmark 2009 report by the state-commissioned Climate Impacts Group. This publication analyzes adaptation options within the existing legal and regulatory framework in Washington. Recognizing the economic and political realities may not lead to new legislation, the recommendations focus on how existing laws can be applied and made more robust to include climate change adaptation.

‘Fifty FDAs’: An Argument for Federal Preemption of State Tort Law that is Less than Meets the Eye

This white paper offers a comprehensive refutation of the “50 FDAs” argument in favor of federal regulatory preemption of state tort law in cases involving unreasonably dangerous drugs and medical devices. The 50 FDAs argument posits that federal regulation of drugs and medical devices ought to preempt state tort law, because state tort law subjects manufacturers of these products to a wide range of inconsistent and unpredictable regulatory standards – the effective equivalent of having to comply with the regulations of 50 different FDAs. They contend that a better approach would be for FDA to adopt regulations imposing unitary federal standards that would supplant the entire state tort law system. This white paper shows the 50 FDAs argument for what it really is: an attempt by drug and medical device manufacturers to limit citizen access to the courts so that they can avoid their civil law responsibilities, while at the same time trying to get a weak set of federal regulations that impose only minimal compliance costs. In this way, the 50 FDAs argument is part of the larger effort by regulated industry to preempt state tort law with weak regulations. The authors of the white paper contend that the 50 FDAs argument should be rejected for the following reasons: 1. Despite industry assertions to the contrary, state tort laws are both uniform and predictable, and so are their application. If anything, the application of a unitary federal standard is more unpredictable than the application of state tort laws. 2. State tort law is an essential part of the way government in the United States functions, making good on the Constitution’s promise of jury trials in common law suits – thus giving citizens a chance to recover damages when they are harmed. 3. State tort laws help keep products safe. Fear of litigation makes a difference, as industry’s ongoing campaign to shield themselves from lawsuits demonstrates.