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Envisioning Law for the Black Swans of Climate Change

Several posts ago I outlined the “stationarity assessment” model for assessing the impacts of social, economic, technological, and environmental change scenarios on law and legal systems. The idea is that fields of law develop over time based on long-settled ranges of variability in relevant contextual factors, and when forces of change stretch that variability range too far, new legal orders may be needed. An example comes from the likely impacts of climate change, which have prompted many resource planners to declare that “stationarity is dead,” meaning that conventional planning assumptions no longer operate. In the same way, some impacts of climate change will disrupt the stationarity assumptions of particular legal fields, putting pressure on law to evolve.

Another agent of change for law comes not from the stretching of existing variability regimes, but from the introduction of altogether new phenomena previously thought to be highly improbable–the black swans, as Nassim Tabad describes them in his award winning book of the same name. These are the kind of no-analog, “unknown unknowns” that land with a big footprint. In the case of disrupted variability regimes, such as fire, drought, and storm frequency, at least the phenomena we are envisioning are familiar and there is a history of managing them upon which to build new solutions. With black swan problems, by contrast, we have no prior management history–they’re completely outside the box. Here again climate change provides an example, in the form of sea level rise.

Consider how the law of littoral property rights–the law of coastal public and private property rights–has developed doctrines to account for gradual versus sudden shifts in the shoreline. Generally, states define the property line at the mean high water mark, with submerged lands seaward of that being state property within the domain of public trust resources. The property line shifts with gradual accretion and erosion, but not with sudden avulsive events such as severe loss of beach during a hurricane. There is no precedent in any state, however, addressing the question whether sea level rise is gradual or sudden within the meaning of this system of littoral property rights. And why should there be–sea level rise was never in the equation. It’s not simply that the common law developed with the assumption that sea level was a remote possibility and thus rejected it as a relevant consideration; rather, the idea of sea level rise never was contemplated. It’s one of the black swans of property law, but now it is a reality that unquestionably will require a solution in the law of littoral rights.

For that purpose, perhaps sea level rise could be seen as a sudden or gradual event, thus easily integrated into existing doctrine. But the stronger case can be made that it is a distinct phenomenon for which some new approach is warranted depending on the location. In some coastal areas, such as the Florida panhandle, erosive and avulsive forces are already severe and could mask the effects of sea level rise, suggesting no need for legal change, whereas in other areas sea level rise could become the dominant effect on the shoreline and thus thought of as something in need of special treatment. Hence, whether it is deemed gradual, sudden, or something different, the status of sea level rise on littoral property boundaries will need to be resolved.

Although it may sound a bit “Star Trekkie,” thinking about the impacts of climate change on law, as well the impacts of other forces of change in play, truly does require that we move beyond stationarity assessments to think broadly about the kinds of black swan phenomena that could be on our horizon. At the ReinventLaw conference, for example, one presenter from the Google X lab discussed the advances being made on developing driverless cars–an idea that was pure science fiction not that long ago–and then mused on the potential legal questions they would present. As someone focused on climate change adaptation, it seems equally strange to think nothing of talking these days about sea level rise as a legal issue–that black swan has shown its feathers. The real challenge–the one motivating Law 2050–is in anticipating the other black swans lurking out there…

Recommended Reading: For some excellent treatments of the directions law might take in response to sea level rise, see J. Peter Byrne, The Cathedral Engulfed: Sea-Level Rise, Property Rights, and Time, 73 La. L. Rev. 69 (2012); Donna M. Christie, Sea Level Rise and Gulf Beaches: The Specter of Judicial Takings, 26 J. Land Use & Envtl. L. 313, 314 (2011); and Joseph L. Sax, Some Unorthodox Thoughts About Rising Sea Levels, Beach Erosion and Property Rights, 11 Vt. L. Envtl. L. 641, 645 (2010) (predicting that sea level rise will present “a historically distinct situation that is not a good factual fit” with existing doctrine).

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