Climate Change Meets the Law of the Horse

By Ruhl, J. B.; Salzman, James | Duke Law Journal, February 2013 | Go to article overview

Climate Change Meets the Law of the Horse


Ruhl, J. B., Salzman, James, Duke Law Journal


ABSTRACT

The climate-policy debate has only recently turned its full attention to adaptation--how to address the impacts of the climate change that we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: How will the legal system as a whole organize around climate change adaptation? Will a new, distinct field of climate adaptation law and policy emerge, or will legal institutions simply work away at the problem through unrelated, self-contained fields, as in the famous Law of the Horse? This Article is the first to examine that question comprehensively, to move beyond thinking about the law and climate change adaptation to consider the law of climate change adaptation.

Part I of the Article lays out our methodological premises and approach. Using a model we call Stationarity Assessment, Part I explores how legal fields are structured and sustained based on assumptions about the variability of natural, social, and economic conditions, and how disruptions to that regime of variability can lead to the emergence of new fields of law and policy. Case studies of environmental law and environmental justice demonstrate the model's predictive power for the formation of new, distinct legal regimes.

Part II applies the Stationarity Assessment model to the topic of climate change adaptation, using a case study of a hypothetical coastal region to demonstrate the potential for climate change impacts to disrupt relevant legal doctrines and institutions. We find that most fields of law appear to be capable of adapting effectively to climate change. In other words, without some active intervention, we expect the law and policy of climate change adaptation to follow the path of the Law of the Horse--a collection of fields independently adapting to climate change--rather than organically coalescing into a new and distinct field.

Part III explores why, notwithstanding this conclusion, it may still be desirable to seek a different trajectory. Focusing on the likelihood of systemic adaptation decisions with perverse and harmful results, we identify the potential benefits offered by intervening to shape a new and distinct field of climate adaptation law and policy. Part IV then identifies the contours of such a field, exploring the distinct purposes of reducing vulnerability, ensuring resiliency, and safeguarding equity. These features provide the normative policy components for a law of climate change adaptation that would be more than just a Law of the Horse. This new field would not replace or supplant any existing field, however, as environmental law did with regard to nuisance law, and it would not be dominated by substantive doctrine. Rather, like the field of environmental justice, this new legal regime would serve as a holistic overlay across other fields to ensure more efficient, effective, and just climate adaptation solutions.

TABLE OF CONTENTS

Introduction

I. Anticipating New Legal Fields
   A. On the Law of the Horse and Why It Matters
   B. Stationarity-Based Design in Law and Policy
      1. Stationarity in Natural Systems
      2. The Stationarity Assessment Model for Legal Fields
      3. Testing the Model for Environmental Law and
        Environmental Justice

II. Stationarity Assessment of Climate Change and Law
   A. Stationarity Assessment Case Study
   B. Assessment of LegalFields
   C. Calling a Horse a Horse

III. Justifying an Intervention
   A. Changing the Scale of Stationarity Assessment
   B. Adaptation as Process, Not Substance

IV. Designing a Field of Climate Change Adaptation
   A. Policy Goals
   B. Procedural Overlay Implementation Mechanisms

Conclusion

      A few years ago, at a conference on the "Law of Cyberspace" held
   at the University of Chicago, Judge Frank Easterbrook told the
   assembled listeners . … 

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