Climate Change Adaptation and the Structural Transformation of Environmental Law

Article excerpt

  I. 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. …