Indiana Environmental Law and Climate Change Adaptation
An Executive Summary
By Thalia Hobson
Thalia Hobson is a second year law student at IU’s Maurer Law School. She is doing research for the Center this summer.
Climate change is already causing changes now, right here in the state of Indiana. This year’s spring was one of the five wettest in the state’s history, and wet springs and intense rainfall events will only get more common in the future. Indiana summers will come to resemble either present-day Missouri or Texas by late century, and our winters will be like those now seen in the Mid-Atlantic[1].
Obviously, some of these changes will be devastating for humans as crops struggle and lives are lost in floods. More summer heat will also put stress on infrastructure and human bodies. There are many ways Indiana could go about reducing its carbon emissions to try and get the least bad outcome possible. But this paper is not about either of those things.
Indiana’s environment is already being stressed. Climate change will only make things worse. This paper examines the problems the state’s ecosystems face, how climate change will exacerbate those problems, and how well Indiana law compares to other jurisdictions at dealing with these issues before they become even worse. In particular, this paper will examine water pollution, habitat fragmentation, and invasive species.
As more rain falls on the state, runoff will naturally increase. Most cities have combined sewer systems where stormwater uses the same infrastructure as wastewater transport. If there is more combined wastewater and stormwater than the infrastructure can handle, some is released untreated into the surrounding waters. In Indianapolis this happens several dozen times a year, although both that city and Ft. Wayne are investing millions or billions of dollars into reducing those numbers. Changes in weather patterns due to climate change could still bring them back up. Combined sewer overflows accounts for a majority of estrogen and androgen pollution in some waters and is far worse for the environment than treated sewage discharges.
Outside of hard, “gray” infrastructure, green infrastructure has the potential to reduce runoff. Green infrastructure traps rainwater and slowly releases it at a rate that the gray infrastructure can handle while also filtering out pollutants. Some examples include green roofs or rooftop gardens and bioswales, which are gently sloped planted areas. Several large cities such as New York, Chicago, Minneapolis, and Denver incentivize green roofs through zoning requirements, relaxation of other regulations, or tax breaks. Similar programs could reduce the total runoff in Indiana. Bioswales on the side of roads and parking lots can substantially reduce the amount of oil and other chemical runoff. Indiana currently subsidizes filter strips, which are similar planting arrangements near waterways. Either expanding that program or requiring them outright as some jurisdictions do would cut down on the number of pollutants entering waterways.
In the suburbs, exurbs, and rural areas, runoff from hard surfaces is somewhat less of an issue. A more pressing problem is the runoff of fertilizer. When too much fertilizer enters a body of water at once, single-celled organisms rapidly absorb the excess nutrients and create a large algae bloom on the surface. When the surplus nutrients run out, the algae mass dies and sinks to the bottom. There the decomposers breaking down the algae use up all of the available oxygen, killing off cold and coolwater fish that live in the bottom layers. In life and death, algae blooms also block off benthic plants from sunlight.
In the suburbs the excess fertilizer is put onto lawns to keep non-native grass species looking lush. Florida, a state that is reckoning with tourism-unfriendly algae blooms and red tide, has allowed homeowners to use native plant landscaping instead of lawns, even if the homeowners association objects. Some Southwestern cities go further and pay owners to replace their lawn with native plants. These alternative landscapes use far less water and fertilizer than normal lawns and also provide better habitat for wild animals.
It is much harder to use political power against agricultural runoff. The federal Clean Water Act does not apply to fertilizer runoff from farms. Interstate compacts can be used to cap the amount of fertilizer allowed to enter the water and reduce the total by allowing trades and steadily shrinking the cap. Indiana sued to prevent a similar system from going into place halfway across the country, making any top-down program unlikely in Indiana. There are legal avenues to suing farmers over their runoff, but only if they demonstrably caused conditions that hurt the plaintiff for more than a short period of time. In practice, these suits are very hard to win. Education and shifting incentives might work. If there are more springs like this one, farmers will become very interested in preventing erosion and minimizing flooding for the sake of their crops. Some best practices, such as not planting near rivers, will become common out of necessity.
As the world warms, some species will find that parts of their habitat are no longer suitable for them. If allowed to move north, they might find newly livable lands to adjust. Large connected habitats also allow for more population resilience than small fragmented ones. For both reasons, habitat connectivity will be important in a warmer world with more natural disasters and new ranges for diseases.
Indiana’s protected lands are not well connected. Some of the largest total plots are national and state forests that are split into a dozen or more small fragments apiece, the exact opposite of the ideal situation. Many of the largest protected areas are military bases that lack an explicitly conservation-oriented purpose. Perhaps worst of all, almost all of these lands are in the southern third of the state. There are very few protected areas or forests in central Indiana, preventing species that do reach the edge of the till plains from easily moving north. The state does have a fund to acquire new land, but at present it is funded almost entirely by the sale of vanity license plates and only makes about one million dollars a year. Even at a very generous rate of $800 an acre, Indiana can only afford to protect two new square miles a year. By the time even the major southern parks are connected, the brunt of climate change will have already been borne.
Wildlife that do have two places to live and wish to move between them often face a major, dangerous step on their path: roads. Turtles on busy roads experience a 98% mortality rate per crossing attempt. Approximately one in five of America’s land turtles are killed each year on a roadway. Thankfully, these problems can be mitigated by overpasses and underpasses. Overpasses are bridges of land over roads that have a tunnel under them for cars to pass through. Underpasses are tunnels, small or large, that go underneath a road. These tunnels have been used by everything from salamanders and box turtles to mountain lions and black bears. In some areas there has been a 96% reduction in wildlife-vehicle collisions after the installation of fencing and wildlife crossings. An Arizona appellate court even held that not installing these crossings could make the state liable for some car crashes. Indiana is just one of eleven states that does not have any wildlife crossings at all. However, even if we did make them the simple fact is that wildlife without a new habitat to go on the other side of the street gain little from being able to cross it.
Native species will not be the only ones looking to expand north. Non-native plants, insects, reptiles, and mammals will also be looking to move in. If left unchecked, they could unbalance native ecosystems and endanger native species. Indiana is not entirely unprepared for all potential threats – the state has had good results in stopping the spread of kudzu that speaks well of their ability to handle future invasive plants. Indiana’s laws on wild boars are some of the best in the country. The state has a significantly more lackluster response to insects. The emerald ash borer is present in 87 of Indiana’s 92 counties. Indianapolis finally responded in force to them a decade after their arrival, not to kick them out but to clean up the dead trees they left behind. The state should seriously investigate why their response to the emerald ash borer failed and take steps to do better against the wooly hemlock adelgid and other potential threats.
Indiana has very bad laws for dealing with invasive reptiles and amphibians. African clawed frogs are only five inches long but capable of ripping things far larger than themselves apart and then eating them. They are voracious eaters that have devastated ponds from San Francisco to Virginia. Kentucky and Nevada ban them from the state; Indiana has no laws regulating them at all. Similarly, Burmese and reticulated pythons have already established themselves en masse in Florida, where they face competition from bears, panthers, alligators, and crocodiles. They can already potentially live in Indiana and future warming will make more of the state livable for them. Indiana allows python ownership without a license, but does restrict the ownership of native snakes. This means that it is far easier to own a reticulated python than a milk snake in Indiana, even though only the former poses a threat to the ecosystem if released. Last year alone there were at least two separate instances of large pythons escaping from their owner’s home in the state. Under current laws, Indiana is relying on chance to avoid giant snakes becoming the state’s apex predator.
Indiana’s current environmental laws have notable flaws. Some of these problems are only going to be made worse by climate change. Changes will need to be made to state law and policies just to stay at the same level of degradation, much less improve the environment. Climate change is already here. There is no time to delay as every passing day is a missed chance to mitigate the damage and preserve what is left.
Footnotes:
[1] Data comes from the Purdue University Climate Change Impacts Assessment.