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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. (more…)
Tracking Climate Change Adaptation Law
Recently I posted on my SSRN site A Summary of Present and Future Climate Adaptation Law, which is to be published as a chapter in the forthcoming second edition of the American Bar Association Press book Global Climate Change and U.S. Law (first edition here), edited by Michael Gerrard of Columbia University Law School and Jody Freeman of Harvard Law School. In anticipation of the inevitable shift from adaptation planning to adaptation action, the chapter provides a background on climate change adaptation policy and a survey of climate impacts and adaptation responses likely to put some pressure on legal institutions and rules to change. The chapter opens by defining the key terms and concepts of climate change adaptation as it has been discussed in major policy analyses. The chapter then summarizes the scope and focus of federal, state, local, tribal, and private climate change adaptation planning initiatives. From there, the chapter reviews the current law of climate change adaptation, which is not yet extensive. What few morsels of legal initiative exist break down into five types: (1) coastal land use controls; (2) environmental impact assessment programs; (3) corporate disclosure requirements; (4) endangered species protection; and (5) anti-adaptation measures The chapter closes with a survey of the potential legal issues climate change adaptation could spark, organized into five categories: (1) land and resources; (2) infrastructure; (3) business disputes and regulation; (4) health and safety concerns; and (5) governance and process. In coming posts I will explore each of those five categories of future climate adaptation law in more detail.
The Stationarity Assessment Method
In an article Jim Salzman of Duke Law School and I recently published in the Duke Law Journal, Climate Change Meets the Law of the Horse, we outline a way of building and assessing legal futurism scenarios. The article itself is about envisioning climate change adaptation law, which in a previous post I suggested is all about legal futurism. But the broader theme is a riff on an already famous 2008 article in Science magazine, Stationarity is Dead, explaining how climate change is going to bust the relatively stable envelope of variability in natural systems upon which water, infrastructure, and other resource management planning has been based for decades. The question for resource and infrastructure managers, therefore, is whether climate change will so alter natural systems as to render obsolete the assumptions of stationarity-based management and design. Many believe that planning going forward must be based on a changing climate and greater uncertainty, depending on which climate-forcing scenario seems most probable.
Law also depends heavily on stationarity-based design. Every field of law is embedded in assumptions about variability in natural, social, technological, or economic conditions. Climate change will trigger potentially sweeping and legally relevant transformations in those systems. These changes, however, will vary across the landscape and will not affect law uniformly across all fields. To test whether the pressure on different fields of law will be transformative, we developed the Stationarity Assessment model. A Stationarity Assessment for law involves (more…)
How Will Climate Change Change Law? An Exercise in Legal Futurism
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. (more…)
Law 2050 