A rapidly growing number of legal academics and practitioners around the world are engaging in one of the largest legal futurism exercises ever endeavored–thinking about how the impacts of climate change and human responses to them will change law. Climate change presents a future of continuing changes across a wide spectrum of climate variables, everywhere, over an indefinite time horizon, with some changes producing conditions never before experienced by human civilizations. How fast and in what directions legal change might evolve under this “no-analog” future is difficult to say at this time given the uncertainty surrounding the pace and course of climate change, but many climate change scenarios have in common a number of projected impacts relevant to law. Obvious legal pressure points stemming from such impacts include rising sea levels, which will present questions of property ownership and protection along the coast, and shifting precipitation and snowmelt patterns, which will put further strain on water rights doctrine. Indeed, adaptation to these and other climate change impacts will likely spawn its own set of legal issues, as human migration and vast infusions of new infrastructure could trigger disputes over land use, environmental, and civil rights policies. Suffice it to say that it is difficult to envision a world in which adapting to climate change does not in some significant ways require the attention of legal institutions and adjustments to legislation, regulations, and common law doctrine.
The premise for examining climate change adaptation as a distinct legal subject is that climate change presents something different in a legally-relevant respect, that it is not self-evident how to treat its effects under existing doctrines or how to design new ones to manage it. Yet to date there is little actual law to be found on the subject of climate change adaptation. This should not be surprising, as climate change has only begun to have tangible effects on human populations. We’ve not had to adapt that much, yet. For the most part, therefore, what law there is on the topic is devoted mainly to looking forward by commissioning studies and planning efforts. Although there have been some substantive legal developments relating to land use controls and business regulation motivated by concerns about climate change, there has been no comprehensive approach to climate change adaptation taken in any federal, state, or local legislation or agency regulation. Similarly, a recent study David Markell of Florida State Law School and I conducted of all active and resolved matters of climate change litigation through 2010 found very few cases even remotely involving climate change adaptation—the litigation action has been dominated by claims regarding regulation or evaluation of greenhouse gas emissions. Climate change adaptation law, to say the least, is in its infancy.
Nevertheless, it is by no means too early for lawyers to be thinking about climate change adaptation as a legal challenge for their clients. It seems inevitable that private and public actors from local governments to insurance companies will begin taking adaptive measures in anticipation of climate change. Even before climate change impacts are substantially felt, in other words, there will be climate change adaptation and, with it, legal rules and standards to develop and issues to resolve.
Envisioning climate change adaptation law is an exercise in legal futurism. Lawyers must examine scenarios about future climate change impacts and human adaptation responses and ask, can the legal system as presently configured handle that, and if not, what changes are likely to be needed? Fortunately, scientists have begun building scenarios of climate change impacts, and public and private organizations have begun building scenarios of social adaptation responses, meaning lawyers already have a robust repository of material for thinking about the future of climate change adaptation law. One impressive example of how lawyers might go about doing that can be found in a new book edited by Michael Gerard of Columbia Law School and Katrina Fischer Kuh of Hofstra Law School, The Law of Adaptation to Climate Change. With contributions from leading practitioners and academics from a wide variety of fields, the volume offers a comprehensive and compact introduction to climate change adaptation law.
Over the next few weeks I will delve into some of the emerging topics of climate change adaptation law in more detail.