INTRODUCTION
W HAT IS CUMATE CHANGE ADAPTATION?
Adaptaion Policy Parameters
A ctor
Environmental law will be one of many actors in shaping climate change disaster and crisis risk management. The history of environmental law in the century of climate change adaptation may be about a trip back into the future.
R esponse Oientation
A dap tation Goals
It states the obvious that the goal of most development policies for adaptation to climate change is to 'minimize and recover from the harms of climate change. 384 ~ENVIRONMENTAL LEGISLATION [o.46 communities and other species, in some cases significant benefits.56 Temperature and precipitation changes will e.g. open up new agricultural or recreational opportunities for areas previously limited in these respects." The goal of regional and local climate adaptation policy will often be to take advantage of change and make life better, not worse, for humans and other species.
Policy Foundation
This will no doubt be politically sensitive, as many communities will struggle primarily to reduce harm, but securing benefits when and where they are available will nevertheless be an inevitable goal of adaptation policy in general and often a primary goal at the local level. One will be changes in the variability of natural events for which we have already developed adaptive strategies, such as floods, hurricanes and fire. the effects of increasing or decreasing the frequency of these natural events.
Capital Em ployed
386 ~ECONOMIC LAW [o.4:6] with such methods it is possible to reduce the risks associated with vulnerability, less damage will be caused and less capital will have to be used to recover from the effects of climate change. However, not all climate change risks can be reduced in this way, as costs, technological limitations, lack of knowledge and wrong assumptions will limit the ability to improve reliability.
M odes ofA daptation
- R esist
- T ransform
- M o ve
- Direct En vironm ental Effects
- Environmental Effects ofHuman Adaptation
- Policy Spillover Effects
Clearly, this kind of resistance to climate change can only go so far on a local basis. The capital costs required to withstand the full effects of climate change would be daunting in many places. Nevertheless, it is likely that many areas of the nation will take action to preserve at least some aspects of the status quo through the adoption of the resilience mode of climate adaptation strategies.
73 For an overview of the variety of climate change impacts Florida's coastal areas are likely to face, see NATURAL MAINTENANCE. The state of resistance to adaptation is likely to be swamped by climate change in many contexts, shifting the focus of performance from maintaining the status quo to measuring how far from the status quo conditions have moved. The stark reality of climate change is that conditions can exhibit extreme swings for better or worse in some areas.
As described in the text, however, a transformational mode of adaptation could involve concerted measures to adapt to climate change while simultaneously pursuing economic and social improvements. Of course, that's part of the problem—measures designed to help species and ecosystems adapt to climate change could limit human adaptation measures, and vice versa, leading to the next kind of political pressure. I'm not sure where this is going, but I have a few ideas about how climate change adaptation policy will most profoundly reshape environmental law—ten of them, to be exact.
Trend One: Shift in Emphasis from Preservationism to Transitionalism
But it has been a history of largely goal-oriented change motivated from within environmental law to address discrete media of pollution and conservation objectives." as is often the case, the law lags behind." 102 See Craig, supra note 18, at 32-40 (examining "the most fundamental paradigms of environmental law and natural resource regulation and management: conservation and restoration"); Doremus, supra note 99 (manuscript at 25-30) (describing conservation policy as relying on . "[t]he triumvirate of harvest regulation, restrictions on trade, and the creation of reserves");
394 ~ENVIRONMENTAL LAW [o.4:6 The assumption of stationarity and everything it was based on will fall to pieces in the era of climate change. 110 See Noss, supra note 96, at Glassical preservationist approaches to conservation, to the extent that they try to preserve nature statically, do not reflect the reality of nature."). This is the constraint that climate change will impose on environmental law regardless of our needs and desires.
Maintaining natural ecological conditions, which would require engaging our security chips in a resilience mode to adapt to climate change, will be either impossible in many circumstances or more expensive than might be justified in others.”12. Second, the central goal of conservation policy to adapt to climate change should be broadly focused on the conservation of biodiversity rather than the conservation of specific species, specific sanctuary purposes, or specific wilderness conditions.” Instead, ecosystem resilience is what will best position us for continuing sustainability planning. in the next century, and the resilience of the ecosystem lies in biodiversity." In short, environmental law will have to give up the strategy of conservation, which it will. The task of its successor, transitionism, will be to shape conservation policy in the direction of transforming and shifting ways of adapting to climate change.
Trend Two: Rapid Evolution ofProperty Rights and Liability Rules
To the extent that the common law is settled on the scope of relative property rights in these contexts – for example, that there is no limitation when it comes to the common law of nuisance in the destruction of coastal dunes – that was all settled before the climate crisis. change came in the consciousness of the law. 133 Other commentators have identified the potential for the needs of climate change adaptation to profoundly influence the development of common law property rights. See, for example, Robin Kundis Craig, Adapting to Climate Change: The Potential Role of State Common Law Public Trust Doctrines, 34 VT.
Nuisance law, for example, regulates the unreasonable use of property in particular contexts,'39 and the public trust doctrine protects important but limited public interests in water resources.'4 They are by no means doctrines upon which we can to support all or most of the climate. changing adaptation law, and I'm not suggesting that we violate the fundamentals of the common law to take climate change adaptation mileage out of them. Adaptation to climate change will, in all likelihood, be the catalyst for this to happen with speed uncharacteristic of common law. It is no surprise that water law scholars were the first movers in climate change adaptation, since water is likely the first vital nature.
150 A growing number of water regulation scholars have argued that adaptation to climate change will require fundamental reforms of domestic water allocation legislation and water property rights. If cities like Miami and New York plan to weather the century of climate change adaptation, they will need a new land use vision. 158 As with water allocation laws, a growing number of land use scholars advocate for fundamental reform of land use laws to respond to the needs of climate change adaptation.
Trend Four: Incorporation of a Human Rights Dimension in
Bums, Global Warning-The United Nations Framework Convention on Climate Change and the Territory of Small Island States, 6 DICK. Intelligence agency, CIA opens Center for Climate Change and National Security (Sept https://www.ciagov/. The second major dynamic will be the interaction of climate change adaptation policy holistically with other major global change drivers.
As discussed earlier, the impacts of climate change that require human and environmental adaptation will be extremely difficult to predict.2 13. However, many commentators express confidence in the ability of traditional collaborative federalism to respond. effectively climate change. Environmental law is not omnipotent, although it cannot be taken from the rhetoric of environmental law over climate change mitigation policy.
My fear is that the "thousand arrows" strategy will also creep into environmental law's approach to climate change adaptation. Climate adaptation is deeply about the environment, but it is not deeply about environmental legislation. describes the spread of incremental environmental policy and the inherent problems it presents, particularly in the context of climate change).
Rather, environmental law will have to earn its place in the mix of many policies that will coalesce around the extremely complex requirements of climate change adaptation. This approach to climate change adaptation and environmental law may disappoint or offend those who see environmental law as a powerful weapon in the fight against climate change.
Trend FYve: Catastrophe and CrisisAvoidance and Response as an
Trend Seven: Shift from "Front End" Decision Methods Relying on
C ON CLUSIO N
After more than a decade of 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 at the hip, adaptation policy dialogue has so far not allowed environmental law to enable it. Recently, the Institute for Environmental Law, for example, asked a group of environmental legal experts what environmental law will look like forty years from now.' Some of the predictions were quite optimistic.
By 2049, the practice of environmental law will be on the decline,” but only because “[t]he nation's most pressing environmental challenges will have taken a dramatic turn for the better following bold actions in Congress, corporate boardrooms, and communities across the country. "2 Similarly, another respondent predicts that '[by the middle of the 21st century, government-driven environmental regulation will be on the way to increasing irrelevance'', but this will only be the case because of the emergence of. Instead, I will is have to agree with other respondents in imagining the very real possibility that by 2049 the remedial policy will have come out of the box a watered-down weakening, m that "environmental legislation will be a law to deal with crisis and emergency remediation, and that we will be focused on "adapting to a changing climate, evaluating options for geoengineering, and addressing disputes over competition for increasingly scarce resources." In that scenario, the more likely scenario, my prediction is that environmental law will be tripartite in three different branches.
However, it is more likely that they will be identified as the environmental components of mitigation and adaptation legislation 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 areas, and will probably not sit at its head. On the contrary, if the ten trends I have identified come true, the capacity of environmental law will be severely tested, and it seems likely that what we think of as environmental law will be dramatically transformed and likely limited in its scope. 34;environmental law" in 50 or 100 years will be close to what environmental law was 40 years ago - primarily a narrow, technical area of pollution control measures supplemented by focused conservation programs.
