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The policy world is, to say the least, focused intently and contentiously on the disruptive effects climate change will have on humans and the biosphere. And rightly so—it’s not looking good. Aggressive public laws and policies must be put in place now, and private behavior must turn towards a much lower carbon future, if we are to effectively mitigate and adapt to the effects of climate change.
As I discussed several weeks ago, however, my friend and colleague Michael Bess has recently published a book, Our Grandchildre Redesigned, examining an unstoppable trend that could be disruptive on the same scale as climate change—the convergence of pharmaceutical, technological, and genetic advances aimed at substantially redesigning humans. This is not science fiction—it is already happening and is picking up. It is not implausible to believe that by mid-century we will have the capacity to manipulate our bodies and minds to be healthier, stronger, smarter, better, and to live longer. By the close of this century it may be possible to routinely produce what we today would think of as a superhuman.
Yet the policy world is virtually silent when it comes to the prospect of a society of redesigned humans notwithstanding (as outlined in my post and of course in the book) that the trajectory towards that state will disrupt society as we know it and pose new and more extreme pressures on the biosphere (think humans, lots more of them, living to 150). Why is that?
One explanation may be that the public and policy-makers simply don’t appreciate how transformative the human redesign will be. They may see it as just about more incremental improvements on medicine and technology. But climate change is also perceived by many as incremental—very incremental—with all the doom and gloom not really felt until decades from now. Climate change policy shapers, however, have stressed the ideas of tipping points, irreversibility, and nonlinear change to get across the point that action must be taken during this “incremental” phase. Yet, again, the same could be said of the human redesign trend—there will be nonlinear advances and a point of no return.
Another possible explanation is that people and policy-makers can’t see any bad coming from the human redesign trend, whereas climate change has very clear downsides for many parts of the world (albeit some upsides for other areas, at least for a while, such as longer growing seasons). By contrast, what’s bad about humans getting faster, stronger, smarter, better, and living longer? Well, read Bess’s book! Sure, a lot of good will come out of it, but so could a lot of bad if we don’t manage it well.
Lastly, one difference between climate change and the human redesign trend is that climate change discourse is brimming with climate models that show, with a a good degree of credibility, what the trends and end points look like generally. It’s easy to construct a map showing what happens to a shoreline if sea level rises five feet, or to depict new temperature regimes on a map, or to estimate economic impacts of more floods. To be sure, climate change models are still very rough, but they are being produced and improved daily. By contrast, it is much harder to capture the disruptive impacts of the human redesign trend on a map or to envision and quantify the economic impacts.
Some combination of these differences between climate change and the human redesign trend likely accounts for their starkly different treatment in current policy discourse notwithstanding their starkly similar scales of disruption. But I am starting to get worried that neglecting to confront the human redesign trend–to start thinking now about policy responses and initiatives–may mean that progress made on climate change could be undermined in large part by the effects of transforming to a society of superhumans. I plan to devote some of my attention int he next couple of years to correcting that potentially grave oversight.
There has been a great deal of buzz and attention in the science and policy communities over the idea that Earth has left the Holocene epoch and entered the Anthropocene, a proposed epoch that begins when human activities started to have a significant global impact on Earth’s geology and ecosystems. What is unique about the Anthropocene is that it is human-driven. We started it through the massive impacts our industry, resource extraction, agriculture, and sheer numbers have had on the biosphere. The question is whether we can end it, and if so, how and at what cost to humanity?
In a fascinating article in Science on this theme, Francois Sarrazin and Jane Lecomte outline five different scenarios for how humans handle the Antrhopocene based on how we treat our fellow species. In the most dystopian (for Earth) scenario, which they call the Blind Anthropocene, we give up on conservation of ecosystems and engage in runaway consumption to serve human needs only. In a range of three Deliberate Anthropocene scenarios, humans engage in conservation efforts, but for different goals. In the most human-focused scenario we conserve biodiversity to produce flows of provisioning (e.g., extracting timber) and regulating (e.g., wetlands providing sediment capture) ecosystem services benefitting human communities. An intermediate scenario adds protection of wilderness and landscapes, but only to enhance cultural (e.g., recreation) ecosystem services. In the most progressive Deliberate Anthropocene scenario, conservation is aimed at inter-generational fitness of humanity, which would focus on maintaining sustainable flows of regulating ecosystem services even at the expense of satisfying wants of present society.
Most environmental policy discourse focuses on which of these four scenarios, all of which are anthropocentric, should guide our decisions and actions. As Sarrazin and Lecomte argue, however, none of these approaches, not even the most aggressive Deliberate Anthropocene conservation scenario, will bring the Anthropocene to an end. They argue that a fifth scenario, which they call the Deliberate Overcoming of the Anthropocene, will be required. In this “evocentric” scenario, humans design conservation to ensure not only the fitness of future generations of humans, but also to ensure the future evolutionary fitness of all other species. Only if we can return other species to such an evolutionary trajectory—one not so influenced by human impacts—could we begin to entertain the idea that the Anthropocene is drawing to a close, thanks to us.
Their proposal is, to say the least, radical. What would it take to accomplish it? What laws and policies would we need to put in place now to start turning the Anthropocene around—to actually end rather than soften its impacts—and how long would it take? Is it even possible?
Regardless of its audacity, their proposal could prompt a useful thought exercise to test just how progressive even our most progressive conservation policies truly are. It could also provide a reference point for measuring how deeply entrenched the Anthropocene moves over time. It is at the very least worth thinking about.
Just as I focus my students in Law 2050 on spotting and following trends, I try to do the same in my field of environmental and natural resources law. One of the tends I have followed for years is the emergence of the “ecosystem services” framework. Some significant recent developments warrant this post:
The ecosystem services framework focuses on the economic values humans derive from functioning ecosystems in the form of services rather than commodities, such as water filtration, pollination, flood control, and groundwater recharge. Because many of these services exhibit public good qualities, ecologists and economists began forging the concept of ecosystem services valuation in the 1990s as a way of improving land use and resource development decision making by ensuring that all relevant economic values were being taken into account when making decisions about the conservation or development of “natural capital” resources. Research on ecosystem services exploded onto the scene and has been going strong since in ecology, economics, and other disciplines bearing on environmental and natural resources management.
The policy world quickly picked up on the ecosystem services idea as well. For example, in 1998 the President’s Council of Advisors on Science and Technology (PCAST) issued a report emphasizing the importance of the nation’s natural capital. The United Nations embraced the concept at the global scale with its Millennium Ecosystem Assessment, which assessed the status of ecosystem services throughout the world and explicitly tied ecosystem services to human prosperity.
By contrast, uptake in law was slow to come. Almost two decades after the PCAST report, it is fair to say that the ecosystem services concept has made few inroads into “law to apply” status in the form of legislative and regulatory text. In one prominent example, when the U.S. Army Corps of Engineers and the Environmental Protection Agency issued a joint regulation in 2008 overhauling their policies on compensatory mitigation under Section 404 of the Clean Water Act, the agencies adopted a watershed-scale focus and declared that compensatory mitigation decisions would take compensating losses to ecosystem services into account. See 33 C.F.R. 332.3(d)(1). That and the few other federal initiatives to use ecosystem services in decision making, while on the rise, have been ad hoc and uncoordinated.
But that is set to change. On October 7, 2015, the Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), and Office of Science and Technology (OST) issued their Memorandum for Executive Departments and Agencies on Incorporating Ecosystem Services into Federal Decision Making (the Memorandum). If fully implemented, the Memorandum has game-changer potential to infuse the ecosystem services concept deep into the fabric of environmental and natural resources law.
The Memorandum “directs agencies to develop and institutionalize policies to promote consideration of ecosystem services, where appropriate and practicable, in planning, investments, and regulatory contexts.” The goal of doing so is “to better integrate in Federal decision making due consideration of the full range of benefits and tradeoffs among ecosystem services associated with potential Federal Actions.” The scope of the policy goal is broadly stated to include all federal programmatic and planning activities including “natural-resource management and land-use planning, climate-adaptation planning and risk-reduction efforts, and, where appropriate, environmental reviews under the National Environmental Policy Act (NEPA) and other analyses of Federally-assisted programs, policies, projects, and regulatory proposals.” To facilitate agencies in achieving its policy goals, CEQ will prepare a guidance document outlining best practices for: (1) describing the action; (2) identifying and classifying key ecosystem services in the location of interest; (3) assessing the impact of the action on ecosystem services relative to baseline; (4) assessing the effect of the changes in ecosystem services associated with the action; and (5) integrating ecosystem services analyses into decision making. In the interim, agencies are by March 30, 2016, to have submitted documentation describing their current incorporation of ecosystem services in decision making and establishing a work plan for moving toward the goals of the policy directive. Id. at 4. Meanwhile, CEQ has assembled a task force of experts from relevant agencies to craft the best practices implementation guidance, which will be subject to interagency review, public comment, and, by November 2016, to external peer review consistent with OMB’s information quality procedures and standards. Once the guidance is released, agencies will adjust their work plans as needed. The Memorandum also acknowledges that “ultimately, successful implementation of the concepts in this directive may require Federal agencies to modify certain practices, policies, or existing regulations to address evolving understanding of the value of ecosystem services.”
Environmental lawyers should watch the Memorandum’s implementation over the next year closely, for if agencies follow its directives faithfully and fully the ecosystem services framework will be teed up to permeate the policies and regulations of a broad range of federal programs that touch our scope of practice. In particular, incorporation of best practices for ecosystem services impact assessments under NEPA would project the ecosystem services framework into state, local, and private actions receiving federal agency funding or approval. To be sure, there is plenty of work to be done before one can evaluate the Memorandum’s impact on the mainstreaming of the ecosystem services framework into environmental law. Significantly, the timeline of the Memorandum directives will deliver the best practices implementation guidance in the final days of the Obama administration, leaving it to the incoming administration to determine where to take it. Nevertheless, simply by declaring the incorporation of ecosystem services into federal agency decision making as an Executive policy and laying out the tasks and timelines for doing so, the issuance of the Memorandum has done more to advance the ecosystem services framework as a legal concept than has any previous initiative. And in the long run, the reality is that the ecosystem services framework is by now so deeply ingrained in ecology, economics, and other disciplines of environmental and natural resources management, it will become increasingly difficult for agencies not to incorporate it. Hence I believe I can safely predict that the momentum the Memorandum will give for mainstreaming the ecosystem services framework into environmental law will not easily be turned around. Stay tuned!
Weird stuff happens. Sometimes really weird stuff happens. And sometimes freaky weird stuff happens–the kind of events that just don’t fit the imaginable.
Nassim Nicholas Taleb’s 2007 book Black Swan: The Impact of the Highly Improbable, had a huge impact on our understanding of weird and really weird events. The essence of Taleb’s Black Swan theory:
What we call here a Black Swan (and capitalize it) is an event with the following three attributes.
First, it is an outlier, as it lies outside the realm of regular expectations, because nothing in the past can convincingly point to its possibility. Second, it carries an extreme ‘impact’. Third, in spite of its outlier status, human nature makes us concoct explanations for its occurrence after the fact, making it explainable and predictable.
I stop and summarize the triplet: rarity, extreme ‘impact’, and retrospective (though not prospective) predictability. A small number of Black Swans explains almost everything in our world, from the success of ideas and religions, to the dynamics of historical events, to elements of our own personal lives.
The key to preparing for Black Swans rests in understanding the way events are statistically distributed over time. Unlike the normal distribution found in many phenomena, such as SAT scores, other phenomena follow what is known as a power law distribution, with many small events and few large events. Think forest fires. Black Swan provided a compelling account of the problem of over-relying on normal distributions to explain the world. For problems defined by “fat tail” power laws that have outlier events way out on the tail one would not find on a normal distribution, sooner or later an event at the end of that tail is going to hit, and it’s going to be big. So, planning for some policy problem based on a normal distribution can lead to under-preparation if in fact the problem follows a power law distribution.
Well, here’s the thing–it’s worse than that. A recent article by Didier Sornette of the Department of Physics and Earth Science at ETH Zurich, Dragon-Kings, Black Swans and the Prediction of Crises, discusses what he calls “life beyond power laws,” meaning “the existence of transient organization [of a system] into extreme events that are statistically and mechanistically different from the rest of their smaller siblings.” In short, he documents the existence of “genuine outliers,” events which don’t even follow the power law distribution. (In the power law graph shown above, sprinkle a few dots way out to the right of the chart and off the line.) The Black Swan event isn’t really an outlier, in other words, because it follows the power law and is simply an event way out on the tail. Genuine outliers violate the power law–they are even “wilder” than what would be predicted by the extrapolation of the power law distributions in their tails. A classic example is Paris–whereas all the populations of all other cities in France map well onto a power law, Paris is a genuine outlier. But Sornette documents that other such outliers exist in phenomena as varied as financial crashes, materials failure, turbulent velocities, epileptic seizures, and earthquakes. He calls such events Dragon Kings: dragon for “different kind of animal” and king to refer to the wealth of kings, which historically has been an outlier violating power law distributions of the wealth of their citizens. (Dragon Kings are also mythical Chinese shapeshifting deities ruling over water, as well as the name of some pretty good Chinese restaurants in cities around the U.S. according to Yelp.)
So, what causes Dragon Kings? Sornette’s theory is complex, but boils down largely to instances when, for whatever reason, all of the feedback mechanisms in a system harmonize in one coupled, self-reinforcing direction. Massive outlier earthquakes, for example, are the result of “interacting (coupled) relaxation threshold oscillators” within the earth’s structure, and massive outlier financial crashes are the result of “the unsustainable pace of stock market price growth based on self-reinforcing over-optimistic anticipation.”
What’s the lesson? The key to Dragoon Kings is that they are the result of the same system properties that give rise to the power law, but violate the power law because those properties have become arranged in such a way as to create severe instability in the system–a systemic risk of failure. When all feedback in the system has harmonized in the same self-reinforcing direction, a small, seemingly non-causal disruption to the system can lead to massive failure. As Sornette puts it: “The collapse is fundamentally due to the unstable position; the instantaneous cause of the collapse is secondary.” His assessment of the financial crash, for example, that, like other financial bubbles, over time “the expectation of future earnings rather than the present economic reality that motivate[d] the average investor.” What pops the bubble might seem like an inconsequential event in isolation, but it is enough to set the collapse in motion. “Essentially, anything would work once the system is ripe.” And the financial system keeps getting ripe, and the bubbles larger, because humans are essentially the same greed-driven creatures they were back centuries ago when the Tulip Bubble shocked the world, but the global financial system allows for vastly larger resources to be swept into the bubble.
The greater concern for me, however, lies back in the physical world, with climate change. Sornette did not model the climate in his study, because we have never experienced and recorded the history of a genuine outlier “climate bubble.” But the Dragon King problem could loom. We don’t really know much about how the global climate’s feedback systems could rearrange as temperatures rise. If they were to begin to harmonically align, some small tipping point–the next tenth of a degree rise or the next ppm reduction in ocean water salinity–could be the pin that pops the bubble. That Dragon King could make a financial crisis look like good times….
Valuing ecosystem services—the streams of benefits functioning ecosystems provide to human populations—has become a powerful theme in natural resources management research and policy, but not so much yet in hard law to apply. The problem has not been with the ecosystem services that are obvious and well registered in markets—crops, recreation, timber, and water supply to name a few. We have plenty of law surrounding services like those. Rather, ecosystem services such as groundwater recharge by wetlands, storm surge protection by coastal dunes, and pollination by wild honeybees are not bought and sold in markets and thus suffer from a classic Tragedy of the Commons dilemma. People get that these are valuable benefits in a big picture sense, but incorporating these values in law—whether in protective regulations, performance standards, incentives, or in core principles of property law—has proven difficult. Yet with climate change looming as a threat to property in general—increased flooding, drought, storm surges, and other threats are not far into the future—it seems that there would be some urgency to incorporating ecosystem services ideas into property law.
One big step in that direction has come from a recent decision by the New Jersey Supreme Court regarding how much compensation beachfront owners are due when the state plops sand dunes on their property. See Borough of Harvey Cedars v. Karan, 70 Atlantic Rep. 524 (NJ 2013). Like many states, New Jersey (with federal help) spends considerable money shoring up the shore, so to speak, by importing sand to beaches subject to erosion. Sometimes these projects go further, in the form of constructing massive dunes on the beach to, in the court’s words, “serve as a barrier-wall, protecting homes and businesses…from the destructive fury of the ocean.” In other words, the idea is to create or supplement the dune ecosystem to enhance the flow of one very valuable ecosystem service—stopping storm surges. And after Hurricane Sandy, there’s not a person in New Jersey who doesn’t get that.
Well, maybe there are a few. There’s another ecosystem services that’s pretty valuable to beachfront owners—their view of the beach! You can see the problem already—higher dunes mean less view. So when the federal, state, and local governments embarked on a dune project in Long Beach Island, some property owners resisted. The project involved purchasing perpetual easements from the beachfront owners and constructing a 22-foot dune system the length of the beach. The local borough was more than willing to provide compensation for the easement, and most property owners were happy to have the dunes. One couple, however, decided not to sell. The borough exercised its power of eminent domain and took the easement from them anyway. Things got interesting when it came time to decide how much “just compensation” was due to the property owners.
This situation involves what is called a “partial taking” of property. If the borough had taken title to the entire property, the owners and the government would have argued over the fair market value of the entire parcel, which while contestable is fairly easy to determine within a reasonable range the same way appraisers estimate home values for loans. It’s trickier when the government is taking only part of the property (in this case the easement), because one has to determine the value of what was taken as well as the impact on the value of what remains. For over a century, New Jersey law allowed the government to offset the losses to the property owners for that “remainder” (in this case the diminished view) with the benefits the owners receive from the public project that required the partial taking (in this case the protection from the ocean), but only if the benefits were “special benefits” the owner received independent of the “general benefits” the project provides to the public at large. At the trial level in the case, the trial court ruled that the protection benefits from the dune project were general benefits, which meant the jury could not include them as offsets. Under that approach, the jury awarded the owners $375,000, and the appellate court affirmed. As is easy to imagine, if the government had to pay every beachfront owner a sum like that–and there were a lot of owners who refused to participate in the project–the project would have been dead in the water (no pun intended). (Note: I’m going to stay away from the part of the story involving public vilification of the recalcitrant owners, like when Governor Christie called them “knuckleheads.”)
The New Jersey Supreme court turned the case into an opportunity to ditch the outdated special benefits/general benefits doctrine. After a very careful review of the history and policy of the doctrine, the court concluded that “the terms special and general benefits do more to obscure than illuminate the basic principles governing the computation of just compensation in eminent domain cases.” Instead, the court ruled, “just compensation should be based on non-conjectural and quantifiable benefits, benefits that are capable of reasonable calculation at the time of the taking.”
From there the court made some rather obvious but refreshing observations about the dune project, as in “without the dune, the probability of serious damage or destruction to the [owners’] property increased dramatically over a thirty-year period,” and thus it is “likely that a rational purchaser would place a value on a protective barrier that shielded his property form partial or total destruction.” Seriously, this is not rocket science—if you want your house standing in 30 years, deal with the dunes!
The court sent the case back to the trial court with instructions that “at that trial, the Borough will have the opportunity to present evidence of any non-speculative, reasonably calculable benefits that inured to the advantage of the [owners’] property at the time of the taking.” In other words, calculate the value of the ecosystem services the dunes provide to beachfront owners. That trial never took place, however, because the parties settled – the borough paid the owners one dollar in compensation (and covered $24,000 of their attorneys fees). One can reasonably assume the property owners saw the writing on the wall.
The Karan case is a huge development for the law of ecosystem services. Not only did the court recognize the inherent value of the dunes, it gave that value firm legal status. One can anticipate many public infrastructure projects in the future as part of climate change adaptation, many of which will require use of or impacts to private property. As with the Long Beach Island dune project, one can hope that many of these infrastructure projects will rely on restoration, enhancement, or creation of natural ecosystems such as dunes, wetlands, and riparian habitat. Certainly just compensation will be due to the property owners, but at least in New Jersey the calculation of just compensation will include recognition of and valuation of the ecosystem services provided by those ecosystem-based projects.
In June 2013 President Obama became the first U.S. president to issue a climate action plan. Needless to say it got a lot of press. Some climate change policy watchers panned it as nothing new (meaning no new proposals for regulation); others condemned it as, well, nothing new (meaning it keeps all the old proposals for regulation); and some praised it as visionary. That’s not my topic for this post. I want to ask what the Plan, whether it’s anything new or not, means for lawyers of the future.
I hope not to sound perverse in suggesting that there is opportunity for lawyers in climate change, but of course there is. Change of any kind often creates opportunities for lawyers, especially the ones who think about it before it happens. So I ask, what’s in the Plan for lawyers, particularly tomorrow’s lawyers–the kind I care about here at Law 2050?
A study commissioned by the Natural Resources Defense Council claims that the Plan–specifically, the part of the Plan that proposes to regulate carbon emissions–will create jobs. Alas, nowhere in that study does it mention new jobs for lawyers. Can it be that there will be no new opportunities for lawyers? I doubt it. Rather, to paraphrase Mr. McGuire from The Graduate: I want to say three words to you. Just three words: Energy and Land Use. OK, I guess that’s four words, but let me get to the point.
As with most climate change policy discourse, there are two main components to the Plan: (1) mitigation, which is how to reduce climate change, primarily by reducing carbon emissions (and/or increasing sinks), and (2) adaptation, which is how to respond to the climate change we will experience regardless of (1), particularly given that (1) isn’t exactly going gangbusters. So if you step back and look for the legal action in the Plan, Energy and Land Use should hit you in the face.
ENERGY: The Plan’s mitigation component is largely about energy policy. In fact, it may be the closest we’ve come to having a national energy policy, ever. Most of the headings in this part of the Plan contain the word energy or are energy focused, such as:
- cutting carbon pollution from power plants
- promoting American leadership in renewable energy
- accelerating clean energy permitting
- expanding and modernizing the electric grid
- unlocking Long-term investment in clean energy innovation
- spurring investment in advanced fossil energy projects
- instituting a Federal Quadrennial Energy review
- increasing fuel economy standards
- reducing energy bills
- establishing a new goal for energy efficiency standards
- reducing barriers to investment in energy efficiency
And the list goes on. Energy, Energy, Energy! Once again, Mr. McGuire said it for me: Tomorrow’s lawyers, there’s a great future in Energy Law. Think about it. Will you think about it?
LAND USE: Although more subtle in its delivery, the adaptation part of the Plan is largely about land use. In climate change policy speak, the term “resilience” is widely used to mean that we need to be better at handling effects of climate change, and a big part of that is about better planning for the built environment and its infrastructure. Plan headings that pop out in this respect include:
- building stronger and safer communities and infrastructure
- directing agencies to support climate-resilient investment
- supporting communities as they prepare for climate impacts
- boosting the resilience of buildings and infrastructure
- rebuilding and learning from Hurricane Sandy
- conserving land and water resources
- maintaining agricultural sustainability
- managing drought
- reducing wildfire risks
- preparing for future floods
There is more in the adaptation part, to be sure, including health, insurance, and science, but mostly its about…Land Use! Tomorrow’s lawyers, there’s a great future in Land Use Law. Think about it. Will you think about it?
In 1978, The Ohio State Law Journal published a symposium issue on a topic near and dear to Law 2050–the future of law. One contribution was The Future of the Law for Energy and the Environment (39 Ohio State Law Journal 752 (1978)), by the late Earl Finbar Murphy. The time frame between its publication and the present–35 years–is about the same as the time frame of Law 2050’s look into the future, so I thought it might be interesting to look back on Murphy’s look forward.
The article is well worth the time for anyone interested in current energy and environmental law and policy. Although I did not know Murphy personally, his credentials in natural resources and energy law were impressive, and this article certainly demonstrates the command he had of our energy and environmental law and policy world in the 1970s. The article is part history, part assessment of the status of energy policy at the time, and a smaller part of prediction. Murphy did not build scenarios of the future, but rather extrapolated from energy history to project a crisis in energy supply by the end of the 20th century. Having just come off the 1973 OPEC oil embargo, that’s understandable, and of course only a year after the article’s publication Murphy’s concern became the reality of the 1979 oil crisis. Much of the article, therefore, is a critique of the government’s dependence on incessant economic growth as the foundation of its social and economic policies, which in turn depended on essentially unlimited access to energy at the expense of the environment. Murphy lamented that the public’s concerns about population growth, pollution, and shortages of energy and capital had not translated into a more coherent set of government policies at the time, and he anticipated a protracted period of political reluctance to change course toward greater integration of renewable energy sources. Legal change plays a small role in the article–much smaller than politics–his central prediction being that the fragile fossil-fuel energy system would eventually crack beyond repair, and then law’s role in retooling the nation’s energy profile would be sweeping in scope.
Ultimately, Murphy was half right and half wrong. He was remarkably prescient in linking energy policy and environmental policy, a pairing we take for granted today but which was not so common in the 1970s. His projection of a shortage-phobic national energy policy also held true for about two decades. Yet, although he recognized the unrelenting investment we would make in finding new sources of fossil fuels, he, like many others, did not anticipate how successful we would be at it. Who was thinking of fracking in 1978?
But the glaring omission from Murphy’s prediction is climate change politics. Climate change is not mentioned at all in the article, which is not the least bit unusual for legal scholarship from the 1970s. Yet fear of climate change, not fear of oil shortages, has become the catalyst for a deep (and controversial) reexamination and fusing of our nation’s energy and environmental policies. One cannot fault Murphy for missing the big game changer–everyone missed it. The lesson for legal futurism, however, is that extrapolation-based projection of a single future is risky. Scenario building, in which multiple possible descriptive futures are constructed, some of which integrate what might seem like “far out” ideas, is a more robust way of testing normative legal futures. Still, I found great value in reading Murphy’s prediction for our present time and highly recommend the article as an exercise in looking back on looking forward.
Legal futurism relies on developing robust scenarios of the future to test possible legal developments and outcomes. A recent article in Futures, A Review of Scenario Planning, defines scenarios as “a set of hypothetical events set in the future constructed to clarify a possible chain of causal events as well as their decision points.” Three main principles go into good scenario planning:
- Identification of predetermined elements in the relevant business or policy environment that will drive and direct future outcomes
- Developing a macroscopic view that pushes people to explore the relevant environment over a wider area than they normally would
- A willingness to change mindsets in order to re-perceive reality
There are numerous techniques used in scenario planning, but generally they fall into two categories. Descriptive scenarios are extrapolative exercises designed to present a range of future likely alternative events. Normative scenarios are more goal directed and are designed to assist in implementing desired policy objectives. The primary focus of legal futurism is on building descriptive scenarios of the legal environment in order to test normative scenarios of legal responses. Developing legal futurism scenarios thus will involve a blend of non-legal and legal futures.
Climate change adaptation provides an obvious medium for this kind of scenario planning. Climate change presents a host of different impacts on public and private interests (the descriptive scenarios), and how public and private entities respond will depend in large part on their respective policy goal alternatives (the normative scenarios). For example, the interaction of sea level rise and storm intensity could play out over several different scenarios for a region, and possible policy responses include to “defend” the shoreline built environment with more infrastructure or to “retreat” from the increased threats by shifting land use development inland. Legal futurism combines these two interacting scenario sets to explore the likelihood of different legal developments, such as whether an aggressive retreat strategy might lead to public regulations triggering takings liability.
An excellent example of this kind of exercise is found in Dan Tarlock‘s recent article in the Vermont Law Review, Takings, Water Rights, and Climate Change. Tarlock combines descriptive scenarios of climate change with normative scenarios of policy responses to explore how takings law might apply to futures ranging from “sea-level rise inundates private property and the state asserts that the land is now subject to the public trust” to the state ordering “the diversion of water from entitlement holders to mitigate adverse climate-change impacts.” His analysis, which bears down how takings jurisprudence encourages moral hazard problems, reveals the usefulness of scenario building not only for anticipating and planning future legal developments, but also for gaining insight about existing legal doctrine. Thinking about how law might work in future scenarios, in other words, tells us something–perhaps a lot in some cases–about how it is working now.
This week a task force of federal, state, and tribal agencies released the National Fish, Wildlife, and Plants Climate Adaptation Strategy, a 5-10 year plan for initiating actions to assist species adapting to climate change. The Endangered Species Act (ESA) does not figure prominently in the plan. Why not?
A few years ago I published an article in the Boston University Law Review, Climate Change and the Endangered Species Act, in which I outlined a trajectory of three key forces of species endangerment flowing from climate change:
- Ecosystem disruption: some species will find it difficult to persist within their current ranges as climate change pulls apart the species assemblies and ecosystem properties to which they have adapted over eons. Many such species are stuck where they are–migration is not an option. Salmon and pikas are examples.
- Adaptive species migrations: some species, however, will find migration an escape from climate disruption. Bravo for them! But when they move into habitat occupied by the “stuck” species, they will add yet another stressor.
- Human adaptation: as humans respond to climate change with sea walls, relocation of coastal cities, water diversions, agricultural adaptations, pest and disease controls, and a host of other adaptation responses, we will put yet more pressure on species at the margin. Humans in need of adaptation may feel less warm and fuzzy about species standing in the way.
The main thrusts of the article were that (1) the ESA is not designed for greenhouse gas emission regulation, but that (2) the ESA, if innovatively deployed by the Fish & Wildlife Service and NOAA, could facilitate species’ climate adaptations. I am beginning to think I was too optimistic.The legal futurist in me doesn’t give the ESA’s species-specific, land use regulation approach more than 10-15 more years before it is overrun by climate change. No way it makes it to 2050. (more…)
Looking into the future of climate change adaptation, meeting the twin climate change adaptation policy goals of reducing vulnerability and increasing resilience is difficult to envision without vast infusions of new and retrofitted infrastructure designed with adaptation in mind. A “defend the coast” strategy for a coastal jurisdiction facing sea level rise, for example, is likely to require coastal armoring and road improvements, and a retreat strategy necessarily requires new infrastructure to support displaced populations. Private and public investment in climate change adaptation infrastructure is likely to be extensive, and it is as likely that it will fail in some instances due to design defects and poor operating decisions. Given it is intended to reduce vulnerability and increase resilience, failure of adaptation infrastructure could have dire consequences for communities. If that happens, who will be liable? And what if government entities provide no adaptation infrastructure in the first place? The law of public infrastructure liability is likely to undergo intense pressure as questions like these are increasingly put in play. (more…)