Climate change adaptation and the structural transformation of environmental law.

Author:Ruhl, J.B.
  1. INTRODUCTION II. WHAT IS CLIMATE CHANGE ADAPTATION? A. Adaptation Policy Parameters 1. Actor 2. Response Orientation 3. Adaptation Goals 4. Management Target. 5. Policy Foundation 6. Capital Employed 7. Strategy B. Modes of Adaptation 1. Resist 2. Transform 3. Move C. Environmental Policy Pressures 1. Direct Environmental Effects 2. Environmental Effects of Human Adaptation 3. Policy Spilloger Effects. III. TEN STRUCTURAL TRENDS IN ENVIRONMENTAL LAW A. Trend One: Shift in Emphasis from Preservationism to Transitionalism in Natural Resources Conservation Policy B. Trend Two: Rapid Evolution of Property Rights and Liability Rules Associated with Natural Capital Adaptation Resources C. Trend Three.. Accelerated Merger of Water Law, Land-Use Law, and Environmental Law D. Trend Four: Incorporation of a Human Rights Dimension in Climate Change Adaptation Policy E. Trend Five: Catastrophe and Crisis Avoidance and Response as an Overarching Adaptation Policy Priority F. Trend Six.. Frequent Reconfigurations of Transpolicy Linkages and Tradeoffs at All Scales and Across Scale G. Trend Seven: Shift from "Front End" Decision Methods Relying on Robust Predictive Capacity to "Back End" Decision Methods Relying on Active Adaptive Management. H. Trend Eight: Greater Variety and Flexibility in Regulatory Instruments Trend Nine: Increased Reliance on Multiscalar Governance Networks J. Trend Ten: Conciliation IV. CONCLUSION I. INTRODUCTION

    The path of environmental law has come to a cliff called climate change, and there is no turning around. Someday, maybe soon, the federal government will take the big leap and enact new legislation designed to curb our nation's greenhouse gas emissions. Whether it is through a carbon tax, a cap-and-trade program, or some new regulatory innovation, the measure will be hailed by many and derided by many others. The supporters will throw a big party, and the opponents will hold a wake. When the hangovers wear off the next day, however, one thing will still be soberingly true no matter how aggressive the newly-minted legislation: Humans and our fellow species are looking into a future of climate change that will last a century or more, and we've done very little in the United States to prepare ourselves for it.

    Indeed, the policy world's fixation on achieving, or blocking, federal greenhouse gas emission legislation as part of our national strategy for climate change mitigation (1) has contributed to our neglect of national policy for climate change adaptation. (2) This wrong turn happened early in the development of domestic climate change policy. As Professor Dan Tarlock observed in 1992, at the time there was "a growing split between environmentalists who advocate mitigation, and 'rational' resource policy analysts who have strongly endorsed adaptation." (3) Adaptation was winning the day, on the premise that "we should adopt the easy, low cost mitigation strategies to reduce energy use and then concentrate on selecting the most efficient adaptation strategies." (4) Tarlock insightfully suggested three reasons for exercising caution in pursuing that approach:

    First, adaptation is based on the ideology of scientific progress, a faith that is open to question. The principle message of environmentalism is that the tenets of Enlightenment thinking must be re-evaluated since science and technology may not always prevent serious harm or make things better. Second, the degree of friction in the proposed institutional responses is often underestimated so institutions may not perform as expected. Adaptation clearly exposes winners and losers in a reallocation. It is not reasonable to expect losers to accept all losses. More generally, institutional inflexibility is increasingly being adopted as a means to protect legitimate interests excluded from dominant resource allocation regimes .... Third, many institutions have no fair and adequate mechanism to deal with global warming. In these cases, adaptation is the adoption of a no action strategy, which may often be the most costly one. (5) As news about climate change grew steadily worse in the years after Tarlock's assessment, (6) the domestic policy pendulum quickly swung sharply in mitigation's direction. Indeed, the challenge of climate change was portrayed as so exceptional, and the need for a new mitigation policy of sweeping dimensions thus so pressing, that talk of adaptation became taboo for fear it might knock the mitigation train off its tracks and lead to complacency] In their impressive book on the topic, The Earthscan Reader on Adaptation to Climate Change, (8) E. Lisa F. Schipper and Ian Burton sum up the tension that existed through the 1990s and well into the following decade:

    [I]nterest in adaptation was overwhelmed by concern about the need to reduce greenhouse gas emissions and stabilize atmospheric greenhouse gas concentrations. Proponents of adaptation faced two obstacles that were attributed to adaptation: reducing the apparent need for mitigation; and playing down the urgency for action. For one, 'adaptationists' were distrusted because their proposals seemed to undermine the need for mitigation. Critics felt that belief in the potential value of adaptation would soften the resolve of governments to grasp the nettle of mitigation and thus play into the hands of the fossil fuels interests and the climate change [skeptics]. In addition, because climate change was popularly perceived as a gradual process, adaptation was not considered urgent as there would be time to adapt when climate change and its impacts became manifest. These views dominated in the mid and late 1990s. (9) The problem is that mitigation policy soon ran into the same three problems Tarlock suggested would plague adaptation policy: Institutions lack the political will to impose tough lifestyle sacrifices on people in general; those who expect to be losers, were a mitigation regime to gear up, have squawked loudly in objection to the anticipated regulatory measures; and no fair and adequate mechanism has been devised to deal with the distributional effects of a comprehensive regulatory regime even if the political will were there to put one in place. (10) So, as with adaptation, mitigation is often portrayed as a scientific and technological challenge that eases us out of the climate change problem without sacrifices or losers-pump greenhouse gases into the ground; invent a cheap solar panel; launch mirrors into space; seed the oceans with iron. (11)

    Today it is abundantly clear that these drags on the formulation of our domestic climate change policy are persistent and debilitating. A comprehensive national strategy that successfully reduces greenhouse gas emissions to levels thought to be adequate to arrest climate change, a feat which the United States obviously could not accomplish alone even if it were known what those levels should be, quite clearly is not around the political corner. (12) And it is just as clear that the miracle technological breakthrough is not past the research stage. Add to that the unavoidable reality of so-called committed warming--the climate change already built into the climate system as a result of past greenhouse gas emissions--which will play out for many decades even if one of these breakthroughs happened yesterday, (13) and the cold war between mitigation and adaptation is finally thawing. Climate change is already happening, and more is yet to come no matter what, thus a consensus is building that mitigation needs adaptation, and vice versa, even if they fundamentally are different and sometimes competing policy thrusts. (14)

    It is not, in other words, an either-or choice between mitigation and adaptation. (15) The time when such a choice could have been made--when starting to install a meaningful mitigation regime could have obviated the need to ever have to think about adaptation--is long since past by many decades. There is no choice any longer: "Mitigation and adaptation are both essential parts of a comprehensive climate change response strategy." (16) There certainly is room for argument over the relative mix of the two strategies and how much to spend respectively on them, questions I do not address here. (17) But almost all recent legal scholarship and policy dialogue now recognizes that formulating and implementing adaptation strategies must in any case be a significant component of our domestic climate change law and policy. (18)

    The period during which adaptation policy was in the doghouse, however, stunted progress on forging its theory, design, and implementation. The accruing "adaptation deficit" (19) has grown large, putting us far behind the European Union, Australia, and many other nations in this respect. (20) In short, "the United States... lacks sufficient investment in the sciences required for moving beyond climate science to define impacts and vulnerabilities." (21) Domestic law and policy are in no better shape. To be sure, legal scholarship on climate change policy is sharply on the rise. (22) Most of it, however, focuses on the configuration of instruments and institutions to accomplish mitigation, as in the debates over the efficacy of carbon taxes versus cap-and-trade (23) and the advantages of federal top-down versus local bottom up initiatives. (24) Although discussion of climate change adaptation, especially more recently, is often included in those scholarly contributions, (25) it is seldom included as a significant focus and almost never with concrete domestic policy proposals offered. (26) Indeed, the vast majority of legal scholarship touching on climate change adaptation explores not domestic preparedness, but rather the scope of responsibility developed nations have to assist the adaptation efforts of the least developed nations most vulnerable to the effects of climate change. (27) The latter is an important policy concern, but the former deserves urgent and focused...

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