G. Trend Seven: Shift from "Front End" Decision Methods Relying on
V. C ON CLUSIO N
Climate change adaptation is profoundly about the environment, but it is not profoundly about environmental law. Indeed, environmental law has a debt to repay to the nation's adaptation deficit. After more than a decade of demanding the nation's myopic and relentless attention to formulating mitigation policy as a supercharged form of pollution control law, environmental law has discovered adaptation. Yet, while environmental law now recognizes mitigation and adaptation as being joined at the hip, adaptation policy dialogue has thus far not allowed environmental law to
287 Cf Cary Coglianese & Jocelyn D'Ambrosio, Policymaking Under Pressure: The Perils of Incrementa Responses to Climate Change, 40 GoNN. L. REv. 1411 (2008) (describing the prevalence of incremental environmental policymnaking and the inherent problems it presents, particularly in the climate change context).
28Farber, supra note 24, at 33.
20101 433
ENVIRONMENTAL LAW V
stake adaptation as its domain. Rather, environmental law will have to earn its position in the multipolicy mix that will coalesce around the tremendously complex demands of climate change adaptation.
This take on climate change adaptation and environmental law may disappoint or offend those who view environmental law as a mighty weapon in the war against climate change. Recently, for example, the Environmental Law Institute asked a group of environmental law experts what environmental law will look like forty years from now.' Some of the prognostications were quite optimistic. One respondent surmised, for example, that "[t]he field of environmental protection will have grown in importance and stature,"20 and another predicted that "[c]arbon sequestration will prove to be a success.""' One respondent believes "[iln
2049, the practice of environmental law will be on the wane," but only because "[tihe nation's most pressing environmental challenges will have taken a dramatic turn for the better following bold actions in Congress, corporate board rooms, and communities across the country."2 Similarly, another respondent predicts that "[b]y the midpoint of the 21st century, government-driven environmental regulation will be on a path of increasing irrelevance," but that will be so only because of the rise of
"nongovernmental consensus standards driven by consumer demand and a robust and active market for pollutants and carbon."29 3
I am not so sanguine. Certainly these predictions cannot be justified as mere extrapolations of current politics and social norms. I would be delighted to be proven wrong (and live to see it), thus making this Article all for naught. But I don't see that in the cards. Rather, I have to agree with other respondents in conceiving the very real possibility that in 2049 mitigation policy will have come out of the box a watered-down weakling,m that "environmental law will be a law of coping with crisis and urgent remediation,""' and that we will be focused on "adaptation to a changing climate, evaluating geoengineering options, and addressing disputes over competition for increasingly scarce resources."'
In that scenario, the more likely scenario, my prediction is that environmental law will have trifurcated into three distinct branches. One
289 See In the Year 2049 What -Will Environmental Protection Be Like 40 Years from Now, ENvrTL F., Nov.-Dec. 2009, at 46.
290 John C. Cruden, Ten Reasons for Environmental Optimism, ENVrTL. F., Nov.-Dec. 2009, at 48, 48.
291 Lee A. DeHihns, Ill, Loolingat the Percentages of Possibilty, ENVrt. F., Nov.-Dec. 2009, at 48, 48.
292 Paul E. Hagen, The End of the Environmental Profession, ENVTL. F., Nov.-Dec. 2009, at 49, 49.
293 Sara Kendall, The CFR Will Still Exist, but Markets Will Rule the Day, ENVTL. F., Nov.-Dec. 2009, at 50, 50.
24 See Michael B. Gerrard, Environmental Law in 2049 A Look Back, ENvr.. F., Nov.-Dec.
2009, at 49, 49.
295 James Gustave Speth, On One Hand, Danger, On the Other, Security, ENVrT. F., Nov.-Dec.
2009, at 51, 51.
296 Michael P. Vandenbergh, Two Scenarios Offer Contrasting Ftures for Feld, ENVrL. F., Nov.-Dec. 2009, at 51, 51.
434 [Vol. 40:363
2010] ~CMATE CHANrGE ADA PTA HION43
will retain the conventional focus on pollution control and ecological conservation, but narrowed in the sense that it will have lost dominion over anything having to do with climate change. There will be some environmental issues, however, that go untouched by climate change, such as the level of .toxins in groundwater and the regulation of mercury emissions from industrial sources. Environmental law will retain its vitality and relevance for those purposes. The other two branches will deal with climate change mitigation and adaptation, respectively. They are more likely, however, to be identified as the environmental components of mitigation and adaptation law rather than discrete bodies of environmental law.27 Whatever they are called, however, the environmental interests will share a very large table with a multitude of policy realms, and likely will not be seated at its head.
So I do not see climate change adaptation as necessarily a growth industry for environmental law, one that strengthens its force and expands its scope to match the massive problem the demands of adaptation will present. Rather, if the ten trends I have identified come true, the capacity of environmental law will be seriously tested, and it seems likely what we think of as environmental law will be dramatically transformed and likely constrained in its reach. Ironically, with the growth of climate change mitigation and adaptation legal regimes, both of which Will form as amalgams primarily of economic and social policy goals and tradeoffs, it is likely that what lawyers think of fitting under the umbrella of
"environmental law" in 50 or 100 years will be close to what environmental law was 40 years ago-mainly a narrow, technical realm of pollution control measures complemented by focused conservation programs. The story of environmental law in the century of climate change adaptation may be about a journey back to the future.
297 Accord Bruch, supra note 240, at 35 (outlining the key elements of "adaptation law");
John C. Dernbach & Seema Kakade, Clmate Change Law. An Introduction, 29 ENERGY L.. 1, 2 (2008) (describing the emergence of "climate change law" as "the intersection of several areas of law, including environmental law, energy law, business law, and international law");
Jacqueline Peel, Climate Change Law: The Emergence of a New Legal Discipline, 32 MELB. U. L.
REv. 922, 924 (2008) (arguing that climate change law must be developed with an awareness of
"the diverse disciplines (such as science, economics, and social science) that underpin conceptions of the climate change challenge").
2010] 435