Adapting to Climate Change Through Law that Bends Without Breaking

Abstract

Climate change poses extraordinary challenges for law. The difficulties of crafting law capable of effectively controlling greenhouse gas emissions are widely recognized. Adaptation to the inevitable effects of climate change is still less widely discussed, but poses at least as great a challenge. The problem for emission reduction is to get any effective standard through the political process and maintain it over time in the face of focused political opposition. The problem for adaptation is to develop legal standards with the right balance of flexibility to evolve as conditions change and rigidity to counteract political opposition. This paper examines that challenge in the context of conservation policy, which presents it in especially sharp focus. Environmental law has traditionally relied on strong precommitment to conservation through a handful of uncompromising mandates enforceable through citizen suits. Those mandates, which are the legal equivalent of sturdy, unbending oak trees, have helped reluctant implementing agencies stand up to political pressures. But oak trees, though strong, can be toppled by the sustained high winds that will characterize the political environment for future conservation efforts. Conservation interests in a warming world will be better served by law modeled on wind-swept pines. It must conform to the harsh reality of their environment while still providing the discipline needed for society to hold to its long-term conservation goals in the face of conflict with short-term economic interests. In this paper, I suggest that such flexible but not formless mandates could come from a combination of substantive strategies including moving baselines, wildlands set-asides, and feasibility-based standards with procedural strategies designed to strengthen the implementing agencies’ backbones, including a burden of proof favoring conservation, involvement of conservation-minded decisionmakers, political independence, and outside oversight. While the task of creating law that strikes the right balance between rigidity and flexibility will not be easy, it need not be overwhelming.