Author:Weaver, R. Henry
  1. ROUTINE CATASTROPHE AND LEGAL ORDER 296 A. Catastrophe as Normative Overturning 297 B. Climate Chaos 304 C. Time Is Late and the Water Rises 307 II. DENIAL AND NIHILISM IN TORT LAW 312 A. Judging as Usual 313 B. Failures of Power 318 C. Climate of Fear 322 III. SEEKING HIGHER GROUND 329 A. Doctrinal Evolution in Urgenda 331 1. Duty and Breach 333 2. Causation and Harm 337 B. Political Conversation and Legal Narrative 342 1. Prods and Pleas in Leghari v. Federation of Pakistan 343 2. The Environmental Apocalyptic in Foster and Juliana 344 CONCLUSION: THE GRACE OF RESPONSIBILITY 354 I. ROUTINE CATASTROPHE AND LEGAL ORDER

    "This is no ordinary lawsuit. " (1)

    Climate change challenges the capacity of law. This is true, first of all, as a historical matter. Most notably, despite decades of warnings from the scientific community, the United States Congress has never passed a law specifically to control greenhouse gas emissions. (2) President Obama resorted to administrative action in an effort to impose some constraints on greenhouse gas emissions. But the centerpiece of that effort, the Clean Power Plan, is stayed pending judicial review and will almost certainly be dismantled by the new administration. (3) Meanwhile, at the international level, nations have struggled to turn the promises of the United Nations Framework Convention on Climate Change into the kind of collective commitment and regulatory structure necessary to avoid dangerous levels of climate change. (4) The President has given conflicting signals on actually withdrawing from the Paris Agreement or the underlying Framework Convention, but his overall approach toward energy and environmental protection have clearly rattled the global climate regime. Thus, the future of international climate change diplomacy and concomitant efforts to subject greenhouse gas emissions to a regime of legal limitations remains far from certain.

    This Article does not focus on these political failures, though their consequences will be dire indeed. We are concerned, rather, with the more profound ways in which climate change destabilizes the concept of law. Put simply, our normative order looks increasingly fragile in "an era of unlimited harm." (5) Climate change will increase the risk of not only relatively "normal" disasters, but also of truly catastrophic ones. Indeed, climate change may routinize catastrophe itself. (6) This Article explores the challenges and paradoxes of routine catastrophe and legal order, with particular attention to the role of tort law (and, importantly, tort-like constitutional obligations of government actors) as a forum for the airing of grievances unaddressed by other legal and social mechanisms. We begin in this Introduction by defining the specific normative challenge posed by catastrophe and by identifying climate change as a particularly vexing threat to social meaning and justice.

    1. Catastrophe as Normative Overturning

      The rise of disaster law as a distinctive field of study has highlighted the difficulty of precisely defining "disaster." (7) Dan Farber notes the "common conception" of "events that are sudden, significant, and natural." (8) But he goes on to elaborate the indeterminacy of these criteria on closer inspection. Sociologists have emphasized the special power of disaster to tear the social fabric, disrupting normal patterns of communal life. (9) Richard Posner, in his distinctive and provocative treatment of catastrophe, focused on those events marked by "utter overthrow or ruin" that "threaten the survival of the human race." (10) Such empirical approaches attempt to describe disaster as a particular set of observable circumstances.

      An alternate approach can be illustrated through a well-known historical case. On February 26, 1972, a pile of coal slag impounding black wastewater collapsed in a hollow in West Virginia. The Buffalo Creek Mining Company had been dumping coal ash and refuse in the upper reaches of the Middle Fork of Buffalo Creek, creating a dam that held back a lake of grimy water left over from coal washing. (11) John Kebblish--second-in-command at Pittston Coal, the parent company of Buffalo Creek--knew that steady rains threatened to overtop the dam. (12) Kebblish later testified that he had urged the company to build an emergency spillway, but he ordered no evacuation.

      Here are the facts. When the dam collapsed, it released over 130 million gallons of wastewater and refuse, sending a 30-foot wall of water down on the coal towns below. The thick slurry of foul water and waste raced through the hollow, ripping out homes and bridges. In a matter of hours, 125 people were killed and over 4000 left homeless. One survivor described the scene:

      I cannot explain that water as being water. It looked like a black ocean where the ground had opened up and it was coming in big waves and it was coming in a rolling position. If you had thrown a milk carton out in the river--that's the way the homes went out, like they were nothing. The water seemed like the demon itself. It came, destroyed, and left. (13) Whole villages were wiped out, replaced that summer by federal government trailers. The trailers were welcome relief, but they could not restore the valley's social integrity: "The old communities... were utterly destroyed and never rebuilt; residents began to live a more barren, less community-centered life." (14) As one victim put it, "we feel like we're in a strange land even though it's just a few miles up Buffalo Creek from where we were." (15)

      The experience of the villagers at Buffalo Creek suggests a different theory of catastrophe. Catastrophe is not some set of physical circumstances, but rather disruption of normative order. (16) The concepts of catastrophe and revolution are linked in intellectual history: both portend either "an ultimate end or a radically new beginning." (17) Robert Cover observed that law constitutes and situates itself within a nomos--"a world of right and wrong, of lawful and unlawful, of valid and void." (18) Catastrophe blows up the nomos. "Catastrophes," Linda Ross Meyer explains, "overturn our very faith in justice, plow up the ground itself. Catastrophes look like cosmic betrayals, not calculated risks. Catastrophes, whether local or international, are moments when we confront the limits of our normative world." (19)

      Catastrophic events, it seems, threaten to hurl us back into the state of nature. The "state of nature" is a foundational concept in political theory which we do not aim to treat here. In the familiar debate, a Hobbesian "war of all against all" (20) contrasts with John Locke's vision of harmony governed by reason. (21) What is striking for our purposes is that this debate recurs in the aftermath of contemporary catastrophes. In the wake of Hurricane Katrina, for instance, the popular press and even public officials described New Orleans as a war zone, engulfed by "widespread chaos, anarchy, and violent crime directed at both rescuers and other survivors." (22) Various commentators have pushed back against these Hobbesian accounts, arguing that solidarity, not strife, characterized post-Katrina New Orleans. (23) We accept the more optimistic rendering but the germane point is that both accounts implicitly accept Meyer's conception of catastrophe as a moment of normative overturning.

      Note, though, that even under the pessimist's view the overturning does not precipitate the original state of nature. We cannot return to the prepolitical condition imagined by Locke and, to a lesser extent, Hobbes. (24) Instead, disaster creates a "second state of nature": normal legal order and governmental function are suspended, but only temporarily. (25) We expect the incumbent political apparatus to respond and reimpose "order." At first, this response might take the form of dramatic assertions of executive power. After Katrina, elected officials, citing "mass chaos," declared their intention to "restore law and order." (26) Police and National Guard troops imposed a state of de facto martial law. (27) In these initial stages, catastrophe may resemble Carl Schmitt's state of exception. (28) Schmitt's writings have come to stand for the proposition that the exception discredits any attempt to subject sovereign prerogative to the rule of law. (29) Following Schmitt, much scholarly discussion of states of emergencies has focused on executive power and its proper constraint.

      These questions are not the primary focus of this Article. Assuming that a bare level of physical security can be restored, a broader array of legal actors must confront lasting damage to normative order. As one of Schmitt's contemporary interpreters has observed, even great ruptures do not fully uproot entrenched norms: "The suspension of the norm does not mean its abolition, and the zone of anomie that it establishes is not (or at least claims not to be) unrelated to the juridical order." (30) Catastrophes, rather, create situations of misalignment, where a void opens between normative structure and cognizable fact.

      Judges, more so than police, can reassert jurisdiction to close this gap. The political theorist Bonnie Honig explains how Schmitt's preoccupation with the sovereign exception obscures this important task. "[T]he current focus on the question of what we are legitimately allowed to do in response to emergency," she argues, "tends to focus attention on the moment of emergency and not on the afterlife of survival." (31) When catastrophe strikes, and the nomos is rent asunder, we must restore not only bare order but also normative integrity: "The goal is to salvage from the wreckage of the situation enough narrative unity for the self to go on." (32) Since judges speak in terms of reason and not only of power, they have a unique role to play in this reconstruction.

      What forms should their role take? Most concretely, courts provide a mechanism by which the victims of catastrophe may employ...

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